OF  THE 

U N I VERS  ITY 
OF  ILLI  NOIS 

34Z.773Z 

1461  co 

V.  1-15 

cpp  6 


Digitized  by  the  Internet  Archive 
in  2016 


https://archive.org/details/constitutionalco1151  illi 


Constitutional 

Convention 

Bulletins 


Compiled  and  Published  by  the 

LEGISLATIVE  REFERENCE  BUREAU 

Springfield,  Illinois 


[Printed  by  authority  of  the  State  of  Illinois.] 


V*' 


Schnepp  & Barnes,  Printers 
Springfield,  III. 

1920. 


30232— 1M 


LEGISLATIVE  REFERENCE  BUREAU. 


Governor  Frank  O.  Lowden,  Chairman. 

Senator  Edward  C.  Curtis,  Grant  Park. 

Senator  Richard  J.  Barr,  Joliet. 

Representative  Edward  J.  Smejkal,  Chicago. 
Representative  Wieliam  P.  Holaday,  Danville. 


E.  J.  Verlie,  Secretary. 

W.  F.  Dodd,  in  charge  collection  of  data  for 
constitutional  convention. 


451 595 


' 

(;ii  l.t.H  Ui  Vll'f ! P.M 


INTRODUCTION. 


By  legislation  of  the  Fifty-first  General  Assembly  (1919), 
Legislative  Reference  Bureau  was  charged  with  the  duty  of 
lecting  and  publishing  data  for  the  constitutional  convention, 
fifteen  bulletins  collected  in  this  volume  represent  in  part  the 
done  in  performance  of  the  duty  imposed  by  statute. 

In  these  bulletins  the  purpose  has  been  to  present  facts 
to  present  them  impartially,  with  an  analysis  of  such  facts  in  or 
to  bring  out  the  chief  problems  which  have  arisen  in  this  a 
other  states.  Appendices  to  each  pamphlet  have  ordinarily  giv 
texts  of  constitutional  provisions  adopted  in  other  states.  Wh< 
a particular  type  of  the  institution  under  discussion  has  not  be 
embodied  in  constitutional  provisions  in  other  states,  drafts  ha 
occasionally  been  printed  in  order  to  give  in  concrete  form  all  tl 
types  of  such  institutions.  Such  drafts  where  included  are  in 
way  intended  as  suggestions  to  the  convention,  or  as  recomme 
dations  of  plans  which  the  Legislative  Reference  Bureau  wot 
wish  to  see  adopted,  but  are  merely  intended  as  exhibits  of  ty' 
of  institutions  not  fully  covered  by  constitutional  provisions 
other  states.  In  order  that  the  complete  texts  of  state  constitutio 
might  be  available,  each  delegate  to  the  convention  was  suppli 
with  a copy  of  Kettleborough’s  “The  State  Constitutions,”  (Ii 
dianapolis,  1918). 

Other  publications  issued  by  the  Bureau  supplement 
bulletins.  In  the  bulletins  no  effort  is  made  to  review  completely 
the  judicial  decisions  interpreting  the  constitution  of  Illinois,  be 
cause  the  decisions  are  fully  summed  up  in  a separate  volume  en 
titled  “Constitution  of  the  State  of  Illinois:  Annotated.”  In  191 
the  Bureau  published  a general  survey  of  the  constitutional  situ- 
ation in  Illinois,  entitled  “Constitutional  Conventions  in  Illinois, 
and  a second  edition  of  this  publication  was  issued  in  1919.  I 
the  bulletins  collected  in  this  volume  reference  is  occas^ionall. 
made  to  this  publication  for  a fuller  discussion  of  certain  sffbje 

Each  bulletin  as  separately  issued  contained  an  index.  yTt 
separate  indexes  have  been  omitted  from  this  volume,  and  a u 
consolidated  index  has  been  substituted  which  seeks  to  inch 
references  to  every  subject  of  importance. 

Legislative  Reference  Bureau. 


February,  1920. 


TABLE  OF  CONTENTS. 


Bulletin  No.  1.  The  Procedure  and  Problems  of  the  Constitution 

Convention. 

pai 

I.  Work  in  preparation  for  tpie  constitutional  conven- 
tion 


II.  Scope  of  a state  constitution 


III.  Problems  of  draftmanship 

The  use  of  language  which  may  be  given  a more  ex- 
tended meaning  than  was  intended ^ 

Similar  clauses  used  in- several  parts  of  the  constitution.  .| 
Language  permitting  or  leading  to  technical  constructions^ 
Other  types  of  difficulties  with  respect  to  draftmanship.  .| 

IV.  Procedure  of  the  constitutional  convention  . . 

Submission  of  convention’s  work 

Length  of  conventions 

Rules  and  committee  organization 

Introduction  of  proposals 

Committee  of  the  whole 2j 

Limitation  of  debate 

Editorial  committee '39 

V.  General  outline  of  state  constitutional  develop- 

ments since  1776 1.3: 

Development  of  the  departments  of  government.  . 

Limitations  upon  legislative  power 

Popular  share  in  legislation 

VI.  State  constitutional  developments  since  1900. 

Popular  participation  in  government 

The  executive  department 

The  legislative  department 

The  courts 

Taxation  

Local  government  and  municipal  home  rule .... 

Miscellaneous  matters  

Summary  


Appendix, 


invention 


VIII. 

CONTENTS— Continued. 


Bulletin  No.  2.  The  Initiative,  Referendum  and  Recall. 

PAGE 

I.  Summary  65 

Definitions  and  Types 67 

Initiative  • 67 

Referendum  67 

Relationship  between  Initiative  and  Referendum 69 

Recall  of  Judicial  Decisions  . 69 

Recall  of  Public  Officers  69 


II  Institutions  in  Illinois 71 

Public  Policy  Law 71 

State- wide  referenda 72 

Referenda  in  Chicago 74 

IV.  Outline  of  Development  of  the  Initiative  and 

Referendum  in  Other  States 80 

V.  Detailed  Analysis  of  the  Initiative  and  Referendum  84 

Types  of  the  Initiative 84 

Draftsmanship  86 

Conflicting  or  Competing  Measures 86 

fs.  Emergency  Measures  88 

Limitations  upon  the  use  of  the  Referendum  91 

Limitations  upon  the  use  of  the  Initiative  92 

Use  of  the  Initiative  for  constitutional  changes 92 

Use  of  the  Referendum  upon  federal  questions 93 

Legislative  submission  of  measures  to  the  Referendum  94 

Petitions  under  the  Initiative  and  Referendum 94 

Titles  97 

Publicity  of  measures 97 

Popular  votes  upon  initiated  and  referred  measures.  . 98 

Amendment  and  repeal  of  measures  approved  by  the 

people  99 

Effect  of  the  Initiative  and  Referendum  upon  the  Gov- 
ernor’s veto  power 100 

IVl.  Analysis  of  Results... 101 

Use  of  the  Initiative  and  Referendum 101 

Elections  at  which  a lar^e  number  of  measures  have 


submitted 


io: 


IX. 


CONTENTS— Continued. 


VI.  Analysis  of  Results — Concluded.  page. 

Analysis  of  submissions  by  types  of  measures 104 

r(a)  Constitutional  amendments  104 

(b)  Legislative  Initiative  as  compared  with  popular 

Initiative  . 105 

(c)  Relationship  between  optional  and  compulsory  ref- 
erendum   105 

(d)  Extent  of  popular  vote 106 

Proportion  of  measures  adopted 108 


VII.  Problems  and  Conclusions 110' 


General  statement  110 

Draftsmanship  110i 

Petitions  Ill 

Submission  to  voters Ill 

Popular  vote  112' 


Emergency  measures  and  the  Referendum 113 

Relationship  between  the  Initiative  and  the  Referen- 
dum and  the  regular  legislature 114 

Relation  between  the  Initiative  and  the  Referendum 
and  the  constitution 115 


Limitation  of  measures  to  be  submitted  to  popular  vote 
Comments  upon  Initiative  and  Referendum  provisions 
in  the  constitutions 


VIII.  Recall  of  Judicial  Decisions 

IX.  Recall  of  Officers 

Appendix  No.  1.  References  


Appendix  No.  2.  Text  of  Initiative  and  Referendum  provisions 

(1)  Utah  

(2)  Oregon,  constitutional  amendments,  statutes 

(3)  Ohio  

(4)  Michigan  

(5)  Nebraska  

(6)  Massachusetts  

(7)  North  Dakota 

(8)  Wisconsin,  rejected  proposal 

(9)  Illinois,  rejected  proposal 

(10)  Combination  of  Wisconsin  and  Illinois  plans 

Appendix  No.  3.  Text  of  Public  Policy  Questions  in  Illinois 
on  the  Initiative  and  Referendum 

Appendix  No.  4.  Illinois  Public  Policy  Law, 


116 

117 

119 

120 

123 

124 
124 
124 
135 
139 
142 
144 
151 
153 

156 

157 

159 

161 


/ 


X. 


CONTENTS— Continued. 


Bulletin  No.  3.  The  Amending  Article  of  the  Constitution. 

Page 

[I.  Summary  171 

II.  Illinois  Experience 173 

Historical  account 173 

Amending  clause  of  the  constitution  of  1870 174 

Limitations  upon  the  proposal  of  amendments 175 

Legislative  proposal  of  amendments 176 

Popular  vote  required  for  the  adoption  of  amendments.  .177 
Constitutional  convention  under  the  constitution  of  1870.179 
Relation  between  two  methods  of  constitutional  alteration  179 

Use  of  the  amending  clause  in  Illinois  since  1870 180 

Suggested  changes  in  details  of  present  amending  clause.  181 

III.  Amending  Methods  in  Other  States 183 

Limitations  u'pon  submission  of  constitutional  amendments.  185 
Legislative  action  in  submitting  constitutional  amendments . 186 

Proposal  by^  popular  initiative 187 

Popular  vote  required  for  the  adoption  of  amendments.  . . .188 

IV  Revision  of  Constitution  Through  Convention 190 

V.  Analysis  and  Conclusions 193 

Use  of  the  initiative 195 

Relation  between  the  constitution  and  statutes 195 

Conclusion  197 

Appendix. 

1.  Illinois  Constitution  of  1870,  Art.  XIV 199 

2.  Chicago  Bar  Association  Amendment 200 

3.  Public  Policy  Questions,  1919 200 

4.  Proposal  of  Chicago  Woman’s  Club 200 

5.  Combination  of  initiative  and  legislative  proposal  of 

amendments 202 

6.  Constitution  of  Michigan,  Art.  XVII 204 


Bulletin  No.  4.  State  and  Local  Finance. 

I.  Summary 215 

Taxation 215 

Budget  Methods 219 

and  . ^19 


XI. 


CONTENTS— Continued. 

II.  Historical  development  in  Illinois 

Constitution  of  1818 

Constitution  of  1848 

Proposed  Constitution  of  1862 

Constitution  of  1870 

Amendments 

Revenue  Legislation  since  1870 

III.  Judicial  decisions  on  taxation  in  Illinois.  . . 

Early  cases 

Intangible  property 

Commutation — License  fees 

Exemptions  

Inheritance  Tax 

Corporate  Authorities 

Local  Improvements 

IV.  Criticism  of  present  tax  system  in  Illinois. 

Undervaluation 

Inequalities 

Intangible  property 

Special  Taxes 

Special  Assessments 

Uniformity  within  taxing  districts. 

Tax  Sales  and  Redemptions 

Official  Criticisms 

V.  Proposed  constitutional  amendments  on  taxation 

IN  ILLINOIS 

Amendment  submitted  in  1916 

# 

VI.  Taxation  in  other  states 

Constitutional  Provisions  before  1800 

From  1800  to  1860 

From  1860  to  1900 

Since  1900 

Existing  Constitutional  Provisions.  . . . 

Tax  Laws  and  their  Operation 

New  York.  . . 

Pennsylvania 
Maryland  . . . 

Massachusetts 


CONTENTS — Continued. 


I.  Taxation  in  Other  States — Concluded. 

Iowa 

Kentucky 

Minnesota 

Wisconsin 

California 


PAGE. 

. 256 
. 257 
. 258 
. 259 
. 261 


Cft.  Comments  and  conclusions  on  taxation 263 

Single  Tax 263 

Conclusions  265 

Suggested  Constitutional  Provisions 266 

fill.  Appropriation  and  budget  methods 268 

The  Budget  Situation  in  Illinois 268 

Relation  of  Appropriations  to  Revenue 275 

\ Detailed  Provisions  regarding  methods  of  Appropriations 278 

Incurring  obligations  without  express  authority  of  law.  . 281 

Summary  on  conditions  in  Illinois 282 

Conditions  in  other  states 283 

Conclusions  286 


X.  Constitutional  restrictions  on  public  debt 288 

State  Debt — In  Illinois 288 

Municipal  Debts  in  Illinois 289 

Judicial  Decisions 290 

Development  of  Constitutional  Restrictions., . 293 

Restrictions  on  State  Debts 296 

Restrictions  on  Municipal  Debts... 299 

Conclusions 303 


NDIX 


no.  I . References : 

A.  Taxation  

B.  Appropriations  and  budget  methods 

C.  Debt  Limitations 


304 

304 

304 

305 


"NDIX  NO.  2. 


Illinois  constitution.  Article  IX 


306 


NDIX  NO. 

A. 

B. 

C. 

D. 


3.  Constitutional  provisions  on  taxation.  . 309 


New  York  Constitution. 309 

Pennsylvania  Constitution 309 

Kentucky  Constitution 309 

Maryland  Constitution 311 


XIII. 


CONTENTS— Continued. 

Appendix  no.  3.  Constitutional  provisions  on  taxation — Con- 


cluded. PAGE. 

E.  South  Dakota  Constitution 311 

F.  Wisconsin  Constitution 311 

G.  Minnesota  Constitution 312 

H.  Ohio  Constitution 312 

I.  California  Constitution 313 


Appendix  no.  4.  Constitutional  provisions  on  budget 
methods  

A.  Illinois  Constitution 

B.  Maryland  Budget  Amendment  of  1916 

C.  Massachusetts  Budget  Amendment  of  1918 

Appendix  no.  5.  Budget  provisions  of  civil  administra- 
tive CODE  OF  ILLINOIS,  1917 


315 


322 


Appendix  no.  6.  Constitutional  provisions  on  debt  limits..  325 


I. 


II. 


A.  Illinois  Constitution 

B.  Oklahoma  Constitution.... 

C.  Ohio  Constitution 

D.  Pennsylvania  Constitution . 

E.  North  Dakota  Constitution 


Bulletin  No.  5. — The  Short  Ballot. 

Summary 

The  ballot  in  Illinois 

The  ballot  in  other  states  and  countries 

Criticism  of  the  long  ballot 

The  short  ballot  movement 

Specific  problems 

The  Ballot  in  Illinois 

Early  conditions — the  Constitution  of  1818 

The  long  ballot  introduced — Constitution  of  1848 

A longer  ballot — Constitution  of  1870 

Statutory  changes  . . 

The  official  ballot — the  “little  ballot” 

Primary  elections 

Frequency  of  elections 

Present  conditions 


CONTENTS— Continued. 

PAGE. 


• III.  The  Ballot  in  Other  States  and  Countries 348 

Long  ballot  states ; 348 

Shorter  ballot  states  and  cities 349 

r The  ballot  in  other  countries 351 

I IV.  Criticism  of  the  Long  Ballot „ 353 

V.  The  Short  Ballot  Movement 356 

Short  ballot  principles 356 

Indorsement  of  principles 356 

^ State  governors 358 

Short  ballot  proposals 360 

Arguments  against  the  short  ballot 361 

Results  attained 363 


364 
364 
367 

367 

368 

Appendix,  References 369 


Bulletin  No.  6.  Municipal  Home  Rule. 

I.  Summary  377 

The  State  and  Municipal  Government  in  Illinois 377 

Status  of  Municipalities  in  other  States 378 

Municipal  Home  Rule 379 

Comments  and  Problems 381 

II.  The  State  and  Municipal  Government  in  Illinois.  . . 382 

Legislative  Authority  over  Municipalities 382 

Special  Legislation  under  the  First  Constitution,....  382 

Limitations  in  the  Constitution  of  1848 . 383 

Special  Legislation  under  the  Second  Constitution 384 

The  Constitution  of  1870 385 

General  Legislation  387 

Optional  Laws  391 

Classification  of  Municipalities 391 


i 


VI.  Specific  Problems 

State  executive  officers 
Election  of  judges.... 

County  officers 

Other  local  districts... 


XV. 


CONTENTS— Continued. 

II.  The  State  and  Municipal  Government — Concluded,  page. 


Overlapping  Districts  393 

* Special  Legislation  for  Chicago 395 

Local  Control  of  Street  Railways 396 

General  Situation 397 

III.  Status  of  Municipalities  in  Other  States.  399 

State  and  Legislative  Supremacy 399 

Constitutional  Limitations  7 399 

Restrictions  on  Special  Legislation 400 

Results  under  Prohibition  on  Special  Legislation 402 

Other  Methods  for  limiting  Legislative  Control 402 

Optional  Laws  404 

Financial  Restrictions 404 


IV.  Municipal  Home  Rule 406 

Legislative  Home  Rule 406 

Constitutional  Home  Rule 407 

Charter-making  Procedure 409 

Scope  of  Municipal  Powers 411 

Requirements  and  Limitations 414  j 

Proposed  New  York  Constitution 415  1 

National  Municipal  League  Proposal 416  1 

Consolidation  of  Local  Districts 416 

General  Comparison  of  Home  Rule  Provisions 418 

V.  Comments  and  Problems 419 

Criticism  of  Existing  Conditions 419j 

Advantages  of  Municipal  Home  Rule 420] 

Objections  to  Municipal  Home  Rule 42( 

Relation  of  Municipal  Home  Rule  to  the  Public  Util- 
ities Problem 4J 

A Possible  Home  Rule  Program 

Draft  of  Municipal  Home  Rule  Provisions 45 

Appendix  No.  1.  References 41 

Appendix  No.  2.  Home  Rule  Provisions 

1.  Missouri  

2.  Colorado 

3.  Michigan 

4.  Ohio 

5.  Oregon 


XVI. 


CONTENTS— Continued. 

Appendix  No.  2.  Home  Rule  Provisions — Concluded.  page. 

■6.  Texas 438 

7.  New  York  (Proposed  Constitution,  1915) 438 

8.  National  Municipal  League  Provisions 442 

9.  Utah  Proposed  Amendment,  1919 445 

10.  Wisconsin  Proposed  Amendment,  1919 447 


Bulletin  No.  7.  Eminent  Domain  and  Excess  Condemnation. 

I.  Summary  455 

II.  Constitutional  provisions  relating  to  eminent  domain  457 

Text  of  Constitutional  provisions 457 

Changes  introduced  by  constitution  of  1870 458 

III.  Construction  of  the  eminent  domain  clauses 461 

What  constitutes  a public  use 461 

Condemnation  of  property  already  devoted  to  public  use.  462 

Power  to  condemn  fee  in  land 463 

Taking  and  damaging  of  property 464 

Measure  of  compensation 467 

Medium  and  time  of  payment  of  compensation 470 

Province  of  the  courts,  the  legislature  and  the  condemning 

authority  471 

The  guaranty  of  jury  trial 472- 

Condemnation  of  land  for  roads  for  public  and  private  use  474 

Condemnation  of  land  for  drainage  purposes.  . 475 

Corporate  franchises  and  property 476 

7 Extension  of  the  power  of  eminent  domain 478 

Types  of  constitutional  provisions  in  general 478 

Constitutional  provisions  extending  state  functions 478 

Constitutional  provisions  expressly  extending  power  of 

eminent  domain 482 

Excess  condemnation — general  statement 482 

Constitutionality  of  statutes  authorizing  excess  condemna- 
tion   483 

Scope  of  the  police  power 485 

List  of  constitutional  provisions  authorizing  excess  con- 
demnation   487 


XVII. 


CONTENTS— Continued. 


PAGE. 


V.  Excess  condemnation 488 

Lot  remnants  488 

Protection  of  public  improvements 491 

Recoupment  494 

Analysis  of  constitutional  provisions  authorizing  excess 
condemnation  495 

VI.  Conclusion 499 

Changes  introduced  by  the  constitution  of  1870 499 

Construction  placed  upon  other  features  of  the  eminent 

domain  clause 500 

Extension  of  the  power  of  eminent  domain 503  , 

Excess  condemnation 503 

Appendix  No.  1.  References 506 

Appendix  No.  2.  Illinois  eminent  domain  provisions 507 


Appendix  No.  3.  Constitutional  amendments  extending 

power  of  eminent  domain 508 

1.  Massachusetts,  1911,  1915,  1918 508 

2.  New  York,  1913 508 

3.  Rhode  Island,  1916 509 

4.  Ohio,  1912 ’ 50 ^ 

5.  Wisconsin,  1912 50! 

Appendix  No.  4.  Proposed  amendments  rejected  by  people.  5111 

1.  New  Jersey,  1915 511 

2.  California,  1913,  1915,  1918 - 511 

3.  New  York,  1911 512 

4.  Wisconsin,  1914 512J 

Appendix  No.  5.  Amendments  proposed  in,  but  not  sub- 
mitted BY,  LEGISLATURES  51^ 

1.  Massachusetts,  1914 

2.  Pennsylvania,  1915 513 


I. 

II. 


Bulletin  No.  8.  The  Legislative  Department. 

Summary  

Historical  outline  of  development  in  Illinois.  . 

Organization  and  apportionment 

Powers  


521 

522 
52 
52 


XVIII. 


CONTENTS— Continued. 

Organization  of  the  two  houses 

Two-chambered  legislature 

Size  of  legislative  bodies 

Terms  and  sessions 

Qualifications,  privileges  and  disabilities 
Compensation  


PAGE. 

. .528 
..528 
. .532 
.'.533 
. .536 
. .536 


Cumulative  voting  and  proportional  representation. 538 


Cumulative  voting 538 

Majority  elections 541 

Proportional  representation 542 

Apportionment  545 

Cook  county  representation  A 548 

Constitution  of  1818 548 

Constitution  of  1848 548 

Constitution  of  1870 549 

Proposals  for  limitation 550 

Limitations  in  other  states . 550 

Legislative  procedure. 555 

Reading  at  large  on  three  different  days 555 

Printing  of  bills 556 

Subject  matter  and  title 557 

Amendment  by  reference 557 

Time  when  laws  take  effect 558 

Practical  operation  of  Illinois  legislative  system 560 

Duplicate  introduction 560 

Committees  562 

Distribution  of  committee  work 564 

. Committee  proceedings 564 

Careful  examination,  etc 565 

End  of  the  session  rush 566 

Rules  of  procedure  in  constitutions 569 


Relations  of  the  legislative  department  to  other 


parts  of  the  governmental  organization 570 

Special  sessions 570 

Veto  power 570 

General  Assembly  as  a canvassing  body 573 

Legislative  appointments 573 

Legislative  functions  in  connection  with  the  appoint- 
ment and  removal  of  officers 574 

Power  of  courts  with  reference  to  legislation 576 


CONI  ENTS— Continued. 


IX.  Legislative  powers 

X.  Analysis  of  present  legislative  organization  and 

work  

XI.  Conclusions  

XII.  More  detailed  problems  in  Illinois 

Cumulative  voting  system 

Limitation  of  representation 

Initiative  and  referendum 

Relation  of  legislative  power  to  the  constitution 

Amendment  by  reference 

Other  procedural  problems 

Appendix  no.  1.  References  

Appendix  no.  2.  Constitution  of  Illinois,  article  iv.  ... 


598 
5 9 1 
59.' 
5 9 ( 

599 

600 
600 


602 


603 


Bulletin  No.  9.  The  Executive  Department. 

I.  Summary  •. . . 62: 

II.  Development  of  the  executive  department 62^ 

• Constitutional  development  62. 

■ Statutory  development 62^ 

Consolidation 625 

Civil  service 62j 

Increase  in  appropriations 

Summary  628 1 

III.  Description  of  the  constitutional  and  statutory 

FUNCTIONS  OF  CONSTITUTIONAL  STATE  OFFICERS 63^ 

Constitution  of  1870 6$ o 

Constitutions  of  1818  and  1848 &3l 

Statutes  . 632 

The  Governor 632 

Constitution  of  1870 63 

Constitutions  of  1818  and  1848 634 

Statutory  powers  and  duties 63 

Lieutenant  governor  637 

Secretary  of  state 63 


XX. 


CONTENTS— Continued. 

Description  of  the  Constitutional  and  Statutory  Func- 
tions of  Constitutional  State  Officers — Concluded. 

PAGE 

Auditor  of  public  accounts 640 

Treasurer  642 

Superintendent  of  public  instruction 645 

Attorney  general  646 

Description  of  the  functions  of  departments  under 

THE  CIVIL  administrative  CODE 650 

General  650 

Department  of  finance  652 

Department  of  agriculture  653 

Department  of  labor  655 

Department  of  mines  and  minerals  656 

Department  of  public  works  and  buildings 657 

Department  of  public  welfare 659 

Department  of  public  health 660 

Department  of  trade  and  commerce 662 

Department  of  registration  and  education 664 

Description  of  the  functions  of  boards,  commissions, 

DEPARTMENTS  AND  OFFICES  NOT  CREATED  BY  THE  CONSTI- 
TUTION AND  NOT  UNDER  THE  CIVIL  ADMINISTRATIVE  CODE  667 

1.  Appointed  by  the  Governor 668 

Adjutant  general 668 

Commission  for  the  uniformity  of  legislation 668 

Penitentiary  commission  668 

2.  Appointed  by  the  Governor  with  the  advice  and 

consent  of  the  senate 669 

Civil  service  commission 669 

Court  of  claims 671 

Illinois  state  historical  library 672 

Lincoln  park  and  West  Chicago  commissioners.  . . . 672 

3.  Ex-officio  672 

Board  for  vocational  education 672 

Board  of  commissioners  of  the  state  library......  673 

Joint  legislative  reference  bureau 673 

Primary  canvassing  board  674 

State  canvassing  board 674 

Tax  levy  board 674 

4.  Partly  ex-officio  and  partly  appointed  by  the 

Governor 675 


XXI. 


CONTENTS— Continued. 


V.  Description  of  Functions  of  Boards,  Etc. — Concluded. 

PAGE. 


Board  of  trustees  of  the  teachers  pension  and  re- 
tirement fund 675 

Board  of  voting  machine  commissioners 676  J 

Centennial  building  commissioners  676  J 

5.  Partly  ex-officio  and  partly  elective 676 

University  of  Illinois  trustees 676 

6.  Partly  ex-officio  and  partly  appointed  by  an  ex-officio 

board  678 

Illinois  library  extension  commission 678 

7.  Partly  ex-officio  and  partly  from  various  societies.  . 678 

Illinois  farmers’  institute 678 

8.  Partly  ex-officio  and  partly  appointed  by  a constitu- 
tional state  officer 679 

Teachers’  examining  board 679  . 

9.  Appointed  by  the  University  of  Illinois 680  ] 

Board  of  examiners  in  accountancy 680 


VL  Analysis  of  the  functions  of  the  constitutional 

STATE  OFFICERS 

Governor  

Relation  to  the  General  Assembly 

Power  of  appointment 

Power  of  removal 

Control  of  other  officials 

Law  enforcement 

Pardoning  power 

Appointment  of  judges 

Summary 

Lieutenant  governor  

Secretary  of  state 

Auditor  of  public  accounts 

Treasurer  

Superintendent  of  public  instruction 

Attorney  general  

VII.  Lack  of  coordination  and  overlapping  of  functions.  . 

Finance  administration 

Educational  agencies  

Corporations  

Elections  


XXII. 


CONTENTS— Continued. 

PAGE. 

VIII.  Conclusions  703 

Problem  of  executive  reorganization 703 

Reorganization  in  other  states 703 

Short  ballot  704 

Civil  service  705 

Power  of  appointment  and  removal 705 

Enforcement  of  law  by  local  officials j 708 

Problem  before  convention 708 

Appendix  No.  1.  References 700 

Appendix  No.  2.  Text  of  article  v,  constitution  of  Illinois  711 


Bulletin  No.  10.  The  Judicial  Department,  Jury,  Grand  Jury  and 
Claims  Against  the  State. 

I.  Summary  725 

II.  Development  of  the  judicial  organization  of 

ILLINOIS 727 

The  constitution  of  1818 727 

The  constitution  of  1848 730 

Legislation  under  the  constitution  of  1848. 732 

Proposed  constitution  of  1862 733 

The  constitution  of  1870 .734 

Legislation  under  the  constitution  of  1870.  . 735 

Supreme  court 736 

Appellate  courts 736 

Circuit  courts  and  superior  court  of  Cook  County.  . . .737 

Probate  courts 737 

City  courts 737 

Municipal  court  of  Chicago 737 

Summary  738 

III.  Structure  of  the  present  judicial  organization  of 

ILLINOIS  740 

The  supreme  court 740 

Organization  740 

Original  jurisdiction 742 

Appellate  jurisdiction 742 


XXIII. 


CONSENTS — Continued. 

Structure  of  Present  Judicial  Organization — Concluded 

PAGFJ 

The  appellate  courts 7j 

Organization  7: 

Jurisdiction  74l 

Circuit  courts 741 

Organization  74(] 

Jurisdiction  741 

Circuit,  superior  and  criminal  courts  of  Cook  County.  . . .74$ 

County  courts 741 

Probate  courts 751 

City  courts 752  j 

The  municipal  court  of  Chicago 753 

Justices  of  the  peace  and  police  magistrates 753 

Analysis  of  the  working  of  the  judicial  organiza- 
tion IN  ILLINOIS 75£l 

Court  geography  of  Illinois 755' 

Jurisdictional  relationships 757 

Types  of  down-state  counties .7571 

Appeals 76 

The  constituent  parts  of  the  judicial  organization 76! 

The  justice  of  the  peace  courts 76? 

County  and  probate  courts 76 

City  courts  76 

Circuit  courts 76“ 

Summary  of  the  down-state  judicial  organization 77! 

The  judicial  situation  in  Chicago  and  Cook  Count} 777 

The  justice  of  the  peace  system  in  Cook  County  outside 

of  Chicago  .. 77 

The  city  court  of  Chicago  Heights .7 

The  municipal  court  of  Chicago 7 

County  court  of  Cook  County 

Probate  court  of  Cook  County 7f 

Circuit  and  superior  courts  of  Cook  County 7 

The  criminal  court  of  Cook  County 784 

Summary  of  judicial  situation  in  Chicago  and  Cook 

County  784 

Appellate  courts  and  supreme  court 78 

Problems  of  judicial  organization  in  Illinois.  79C 

Character  of  judicial  article 


XXIV. 


CONTENTS— Continued. 

V.  Problems  of  judicial  organization  in  Illinois — Con- 
cluded PAGE. 

I Unified  court 793 

Rules  of  court 803 

System  of  appeals 806 

Proposals  of  a less  fundamental  character 809 

Probate  matters  809 

Testamentary  trusts  809 

Construction  of  wills 809 

Trials  de  novo  809 

City  and  county  courts 810 

Qualifications  of  judicial  officers 810 

Masters — court  commissioners  810 

Public  defender  811 

State’s  attorneys  811 

Uniformity  of  jurisdiction 811 

Coroners  812 

Justices  of  the  peace 812 

Suggestions  covered  in  other  chapters  of  this  bulletin. 813 

VI.  Election  and  tenure  of  judges 814 

The  Illinois  problem 815 

Situation  outside  of  Cook  County 816 

The  Cook  County  situation 817 

Methods  of  selecting  judges 817 

Methods  of  electing  judges  of  the  supreme  court 820 

Tenure 822 

Removal  of  judges 822 

Retirement 824 

Vacancies . .825 

Additional  judges,  temporary  vacancies  and  ad  litem 

L appointments  .825 

IT.  Indictment  and  information 828 

Constitutional  and  statutory  provisions  in  Illinois 828 

Proceedings  in  commitment  and  indictment 830 

Formal  requisites  of  the  indictment 831 

Criticisms  of  the  grand  jury .832 

The  grand  jury  in  other  states 833 

Conclusions 835 


CONTENTS — Continued. 


PAG 


VIII.  Trial  by  jury . . .83 

Constitutional  and  statutory  provisions 83 

Operation  of  the  jury  system  in  Illinois 84 

Suggested  changes  in  jury  system 84 


Number  necessary  to  render  a verdict 84 

Number  of  jurors 844 

Waiver  of  jury 845 

Operation  of  changes  in  jury  system 846 

Suggested  changes  in  criminal  jury 846 

- i 

IX.  Power  of  the  courts  to  declare  laws  unconstitu-  j 

tional 847 

Development  of  power  in  Illinois 847 

Proposals  with  respect  to  judicial  power 850 

Comments  upon  proposals 859 

Advisory  opinions 861 


X.  Claims  against  the  state 864 

Development  in  Illinois 864 

Interpretation  of  the  constitution  of  Illinois 865 

Claims  against  the  state  in  federal  courts 866 

Claims  against  the  state  under  the  constitution  of  1870.  .867 

Work  of  the  court  of  claims 868 

Claims  against  the  United  States 870 

New  York  commission  of  claims 871 

Provisions  in  other  states 872 

Conclusions 873 


Appendix  no.  1.  References  875 

Appendix  no.  2.  Judicial  provisions  of  the  constitution  of 

Illinois  876 


Appendix  no.  3.  Tables 885 

(1)  Population  of  supreme  court  election  districts  by 

counties  885 

(2)  Population  of  appellate  court  districts  by  counties.  .886 

(3)  Population  of  judicial  circuits  by  counties 888 

(4)  Area  and  population  of  counties,  together  with 

salaries  of  state’s  attorneys  and  county  and  pro- 
bate judges 892 


XXVI. 


CONTENTS— Continued. 


PI 


'ENDIX 


No.  3.  Tables — Concluded.  page. 

(5)  City  courts 893 

(6)  Down  state  judges  holding  court  in  Chicago 894 


(7)  Summary  of  work  of  appellate  courts  1910  to  1918..  .895 

(8)  Tables  indicating  work  of  supreme  court  1910  to 


1919 


890 


Bulletin  No.  11.  Local  Governments  in  Chicago  and  Cook  County. 


I.  Summary .905 

Local  governments  in  Cook  county , 905 

Proposals  for  unification , 908 

City  and  county  consolidation  in  other  states  and  countries . 909 

II.  Local  governments  in  cook  county 911 

Introduction 911 

Cook  County 913 

County  Officers 914 

Courts  in  Cook  County 916 

Elective  County  Officers..... 919 

City  ofi  Chicago 920 

Organization  of  City  Government  921 

Overlapping  Authorities 922 

Sanitary  District  of  Chicago 923 

Towns  in  Cook  County 925 

Cities  and  Villages 928 

Park  Districts 930 

School  and  High  School  Districts 932 

Library  Boards 933 

Drainage  Districts  934 

Congressional  and  Legislative  Districts 935 

The  Voter’s  Burden 935 

III  Proposals  for  unification 937 

Constitutional  Convention  of  1870 937 

Constitutional  Amendment  of  1904 938 

Consolidation  Measures 940 


r 


hi 


XXVII. 

CONTENTS — Continued. 

Proposals  for  unification — concluded. 

Chicago  Bureau  of  Public  Efficiency  Reports.. . 

Defects  of  Present  Arrangements 

Benefits  of  Unification.. 

Proposed  Plans 

Under  Section  34,  Article  IV 

City-County  of  Chicago 

Sanitary  District  Area 

Problems 

Other  Plans— Proposed  Metropolitan  Court. 
County  readjustments  outside  of  Chicago.  . . 
Constitutional  Obstacles 


1 

PAGE. 

..941 
..942 
..943 
..943  < 
. .943 
. .944 
. .944 
. .945 
. .948 
..948  , 
. .952 


IV  City  and  county  consolidation  in  other  states 

AND  COUNTRIES 955 

5lew  York  City 955 

Boston,  Suffolk  County  and  Metropolitan  District 958 

Philadelphia  City  and  County 961 

Baltimore  962 

District  of  Columbia 963 

St.  Louis 965 

San  Francisco  City  and  County 968 

City  and  County  of  Denver 970 

City  and  County  of  Honolulu 973 

Other  Consolidation  Provisions  and  Plans — Virginia, 
Michigan,  Minnesota,  Missouri,  California,  Ohio,  etc.  . . .973 

County  Boroughs  in  England 976 

German  City-Circles  (Kreis  Stadte) 977 

Swiss  City  Cantons 978 

Paris  and  the  Department  of  the  Seine 978 

V Conclusions 980 

Appendix  No.  1.  References 982 


Appendix  No.  2.  Tables 983 

1.  Assessed  Valuations — 1918 — City  of  Chicago,  Sani- 

tary District  and  Cook  County 983 

2.  Assessed  Valuation — 1918 — City  of  Chicago 983 

' 3.  Assessed  Valuation — 1918 — Sanitary  District 984 

4.  Assessed  Valuation—  1918 — Cook  County,  Outside  of 

Chicago  985 


XXVIII. 


CONTENTS — Continued 

Appendix  No.  2.  Tables — concluded.  page. 

5.  Assessed  Valuation — 1918 — Cook  County  Outside  of 

Sanitary  District 98G 

6.  Summary  of  Taxes  Extended — 1918 — Within  Cook 

County  987 

7.  Relation  Between  Taxes  Extended  Within  Cook 

County  and  Those  Within  Sanitary  District  and 
City  of  Chicago — 1918 987 

8.  Taxes  Extended — 1918 — Chicago  by  Towns 988 

9.  Taxes  Extended — 1918 — Country  Towns  of  Cook 

County  990 

10.  Tax  Rates — 1918 — Chicago  and  Certain  Other  Cities 

and  Villages  in  Cook  County 992 

11.  Counties  Adjacent  to  Cook  County — Assessed  Valua- 

tions and  Taxes  Extended — 1918 992 

12.  Bonded  Indebtedness  of  Local  Governments  in  Chi- 

cago   993 

Appendix  no.  3.  Article  4,  Section  34  of  Constitution  of  1870. . .994 
Appendix  no.  4.  Proposal  of  Chicago  City  Council 996 


Bulletin  No.  12.  County  and  Local  Government  in  Illinois. 


I.  Summary 1007 

II.  Development  of  local  government  in  Illinois 1009 

Under  French  and  British  rule 1009 

The  territorial  period 1009 

Under  the  constitution  of  1818 1010 

Constitution  of  1848 1011 

Proposed  constitution  of  1862 1012 

Constitution  of  1870 1012 

Legislation  since  1870 1014 

III.  Present  conditions  in  Illinois 1018 

Introductory  1018 

County  areas  and  county  seats 1019 

County  boards 1020 


XXIX. 


CONTENTS — Continued. 

III.  Present  Conditions  in  Illinois — Concluded.  page. 

County  officers 1021 

T ownship  organization 1024 

Tax  administration 1027 

Road  administration 1027 

Justices  and  constables 1028 

School  administration 1029 

Drainage  districts 1030 

Cities  and  villages 1032 

Park  districts 1033 

Public  health  districts 1035 

Complexity  of  local  government 1035 

Local  finances 1037 

IV.  Local  government  in  other  states 1041 

Historical  development. 1041 

Constitutional  provisions 1043 

General  characteristics  of  counties 1044 

County  government 1045 

County  home  rule 1047 

Towns  and  townships.  . . . , 1048 

Villages,  boroughs  and  cities 1051 

Special  districts 1053 

State  supervision 1054 

V.  Comments  and  conclusions 1056 

Local  areas 1056 

Detailed  provisions  on  county  government 1056 

Home  rule 1058 

Appendix  no.  1.  References  1060 

Appendix  no.  2.  List  of  Illinois  counties,  with  areas,  popu- 
lation in  1910,  and  types  of  county  gov- 
ernment   1062 

Appendix  no.  3.  Constitutional  provisions 1064 

1.  Illinois  constitution,  Article  X,  Counties.  1064 

2.  Maryland  constitution,  Article  XIA,  Local  legislation.  1066 

3.  Michigan  constitution,  Article  VIII,  Local  government . 1070 

4.  Minnesota  constitution,  Article  XI,  Counties  and  town- 

ships   1073 

5.  Ohio  constitution,  Article  X,  County  and  township  or- 

ganization   1074 

6.  Proposed  Ohio  county  home  rule  amendment 1075 


XXX. 


CONTENTS— Continued. 

Bulletin  No.  13.  Farm  Tenancy  and  Rural  Credits. 

PAGE. 

I.  Summary  1083 

II.  Farm  tenancy  and  absentee  landlordism 1085 

Farm  tenures  in  Illinois 1085 

Absentee  landlordism  in  Illinois 1087 

III.  Systems  of  rural  credits:  first  mortgage  systems:  fed- 

eral FARM  LOANS 1089 

National  Farm  Loan  Associations 1090 

Capital  stock  of  national  farm  loan  associations 1092 

Powers  of  national  farm  loan  associations 1092 

Farm  loans  made  through  national  farm  loan  associa- 
tions   1092 

Federal  Land  Banks  1094 

Farm  loans  made  by  the  federal  land  banks 1094 

Terms  and  conditions  of  loans  made  by  federal  land 

banks  1096 

Powers  of  federal  land  banks 1098 

Restrictions  on  federal  land  banks 1099 

Agents  of  federal  land  banks 1099 

Bonds  of  federal  land  banks 1100 

Joint  Stock  Land  Banks 1100 

Differentiated  from  federal  land  banks.. 1100 

Farm  loans  made  by  the  joint  stock  land  banks 1101 

Amortization  Plan  of  the  Federal  System 1103 

Amortization  methods  of  the  federal  land  banks  and 

the  joint  stock  land  banks 1104 

Application  of  amortization  and  interest  payments.  . . .1105 

Investments  in  Farm  Loan  Bonds 1106 

Provisions  safeguarding  investments 1106 

IV.  Other  first  mortgage  systems 1110 

State  systems. 1110 

Foreign  systems 1116 

V.  Systems  based  on  second  mortgages 1118 

VI.  Systems  for  short-time  credits 1119 

VII.  Conclusions  1120 

Appendix — references  1121 


XXXI. 


CONTENTS— Continued. 


Bulletin  No.  14.  Social  and  Economic  Problems. 

PAGE. 

I.  Summary 1129 

II.  Extent  to  which  social  and  industrial  legislation  is 

PREVENTED  BY  THE  PRESENT  CONSTITUTION, 1130 


III.  Housing  and  ownership  of  homes 1138 

Demonstration  or  experimental  work  in  providing  low 

cost  homes .* 1138 

Government  aid  to  home  owning  in  foreign  countries.  .1139 

State  loans  for  purchase  of  homes 1140 

Legislation  in  force  in  Australian  states.  1141 

Government  guaranty  of  bonds  of  building  companies . .1142 
Farm  loans  and  housing  in  cities. 1143 

IV.  Social  insurance 1144 

Compulsory  health  insurance 1144 

Unemployment  insurance 1145 

Old  age  pensions 1145 

Constitutional  problems  in  connection  with  social  insur- 
ance  1146 

V.  Soldiers^  bonuses  and  preferences 1147  ^ 

Preference  in  public  employment 1148 

Admission  to  professions 1149 

Exemptions  from  certain  taxes  and  fees 1149 

Land  settlement  plans  for  soldiers 1149  A 

Vocational  rehabilitation 1151  4 

Committees  and  boards  for  welfare  of  soldiers 1152 

Conclusions 1153  * 

VI.  Injunctions-  in  labor  cases 1155 

Outline  of  Illinois  statute 1155  , 

Operation  of  injunction  procedure 1155 

Conditions  under  which  injunctions  will  be  issued  in 

labor  cases 1157 

Arguments  for  and  against  the  restriction  of  injunctions 

in  labor  cases 1161  * 

Proposed  legislation  in  Illinois  and  legislation  in  other 

states 1163 

United  States  legislation 1164 


XXXII. 


CONTENTS— Continued. 

VI.  Injunctions  in  labor  cases — Concluded.  page. 

Constitutionality  of  proposed  legislation 1168 

Giving  a preferred  status  to  labor 1169 

Limitation  of  the  use  of  injunctions 1172 

Punishment  of  contempts 1172 

Conclusions 1174 

VII.  Corporations,  railroads,  warehouses,  public  utilities, 

BANKING  AND  INSURANCE  CORPORATIONS 1176 

Corporations  . . . . 1176 

Railroads 1177 

Warehouses 1177 

Public  utilities .; ...1178 

Banks 1179 

Insurance 1179 

VIII.  Canals  and  internal  improvements 1180 

IX.  Illinois  central  railroad 1183 

Historical  account  of  the  Illinois  Central  provision 1183 

Problems  of  collection 1184 

Amounts  received  from  the  Illinois  Central  Railroad.  . .1185 
Comparison  of  payments  of  Illinois  Central  to  the  state 

with  taxation  of  other  railroads  in  Illinois 1185 

Constitutionality  of  Illinois  Central  gross  receipts  tax.  .1187 

Bulletin  No.  15.  Bill  of  Rights,  Education,  Militia,  Suffrage  and 
Elections,  Preamble,  Boundaries,  Distribution  of  Powers, 
Schedule. 

I.  Summary  1195 

II.  Bill  of  rights 1196 

Religious  liberty  and  aid  to  sectarian  institutions 1196 

Comment  upon  failure  of  accused  to  testify  in  his  own 

behalf 1199 

Capital  punishment 1200 

Libel 1300 

Constitutional  provisions  duplicating  those  of  federal 

constitution 1300 

Proposed  clause  guaranteeing  individual  initiative 1201 


XXXIII. 


CONTENTS— Concluded. 


III.  Education 


page. 

.1203 


IV.  Militia 


1206 


V.  Suffrage  and  elections 


1207 


VI.  Preamble,  boundaries,  distribution  of  powers  and 

SCHEDULE 1209 


Appendix — Illinois  constitutional  provisions 1210 

Preamble 1210 

Article  I.  Boundaries 1210 

Article  II.  Bill  of  rights 1210 

Article  III.  Distribution  of  powers 1212 

Article  VII.  Suffrage 1212 

Article  VIII.  Education 1213 

Article  XII.  Militia 1213 


CONSTITUTIONAL  CONVENTION 


BULLETIN  No.  1 


The  Procedure  and  Problems 
of  the  Constitutional 
Convention 


Compiled  and  Published  by  the 

LEGISLATIVE  REFERENCE  BUREAU 

Springfield,  Illinois 


[Printed  by  authority  of  the  State  of  Illinois.! 


LEGISLATIVE  REFERENCE  BUREAU. 


Governor  Frank  O.  Lowden,  Chairman. 

Senator  Edward  C.  Curtis,  Grant  Park. 

Senator  Richard  J.  Barr,  Joliet. 

Representative  Edward  J.  Smejkal,  Chicago. 
Representative  William  P.  Holaday,  Danville. 


E.  J.  Verlie,  Secretary. 

W.  F.  Dodd,  in  charge  collection  of  data  for 
constitutional  convention. 


■ 


INTRODUCTION  AND  SUMMARY. 


This  is  the  first  of  a series  of  pamphlets  to*  be  issued  in  connection 
with  the  constitutional  convention.  The  purpose  of  this  pamphlet  is 
largely  introductory.  It  seeks  to  do  the  following  things : 

(1)  To  outline  briefly  the  plans  now  in  progress  for  the  collec- 
tion of  data  for  the  use  of  delegates  to  the  convention. 

(2)  To  indicate  the  scope  of  a State  Constitution  as  contrasted 
with  functions  of  the  regular  state  legislature,  and  to  point  out  some 
of  the  dangers  likely  to  result  from  detailed  constitutional  provisions. 

(3)  To  discuss  the  types  of  problems  involved  in  drafting  a new 
constitution  or  amendments  to  the  constitution  of  1870,  using  as 
illustrations  the  provisions  of  the  present  constitution  of  this  State. 

(4)  To  indicate,  from  the  experience  of  other  conventions, 
some  of  the  problems  involved  in  the  procedure  of  the  constitutional 
convention.  This  discussion  is  largely  the  same  as  that  in  the  pub- 
lication issued  by  the  Legislative  Reference  Bureau  on  “Constitu- 
tional Conventions  in  Illinois”. 

(5)  To  give  a general  outline  of  state  constitutional  develop- 
ments since  1776,  and 

(6)  To  give  somewhat  in  detail  a statement  of  constitutional 
changes  since  1900.  The  Illinois  convention  will  be  facing  sub- 
stantially the  same  problems  that  have  presented  themselves  in  other 
states,  and  it  has  seemed  wise  that  the  delegates  to  the  convention 
should  have  before  them  a rather  full  indication  of  what  other  states 
have  done  in  recent  years. 

Legislative  Reference  Bureau, 

Springfield,  Illinois. 


September,  1919. 


TABLE  OF  CONTENTS. 


PAGE. 

I.  Work  in  preparation  for  the  constitutional  conven- 

tion   9 

II.  Scope  of  a state  constitution 11 

III.  Problems  of  draftmanship 15 

The  use  of  language  which  may  be  given  a more  ex- 
tended meaning  than  was  intended 16 

Similar  clauses  used  in  several  parts  of  the  constitution.  .17 
Language  permitting  or  leading  to  technical  constructions  19 
Other  types  of  difficulties  with  respect  to  draftmanship.  . .21 

IV.  Procedure  of  the  constitutional  convention 23 

Submission  of  convention’s  work .,..23 

Length  of  conventions 24 

Rules  and  committee  organization 24 

Introduction  of  proposals 27 

Committee  of  the  whole 28 

Limitation  of  debate 28 

Editorial  committee 29 

V.  General  outline  of  state  constitutional  develop- 

ments since  1776 31 

Development  of  the  departments  of  government 31 

Limitations  upon  legislative  power 33 

Popular  share  in  legislation 35 

VI.  State  constitutional  developments  since  1900 36 

Popular  participation  in  government 37 

The  executive  department 40 

The  legislative  department 43 

The  courts 45 

Taxation  47 

Local  government  and  municipal  home  rule 48 

Miscellaneous  matters  49 

Summary  .51 

Appendix.  Text  of  Act  calling  Convention 53 


I.  WORK  IN  PREPARATION  FOR  THE  CONSTITU- 
TIONAL CONVENTION. 


The  delegates  to  a constitutional  convention  can  not  take  the  time 
to  collect  the  information  needed  in  their  deliberations  and  if  such  in- 
formation is  collected  the  work  must  in  the  main  be  done  in  advance  of 
the  meeting  of  the  convention.  For  this  reason  the  practice  has  de- 
veloped of  planning  in  advance  for  the  collection  of  desired  informa- 
tion. Collections  of  constitutions  were  made  available  for  the  New 
York  conventions  of  1867  and  1894,  and  for  the  Michigan  convention 
of  1907-08 ; and  a digest  of  state  constitutions  was  prepared  for  the 
Ohio  convention  of  1912.  For  the  New  Hampshire  conventions  which 
assembled  in  1902  and  1918  manuals  were  prepared  containing  much 
useful  information.  In  New  York,  careful  preparations  of  materials 
were  made  in  advance  of  the  conventions  of  1846,  1867,  1894  and 
1915.  For  the  Massachusetts  constitutional  convention  of  1917-19 
a series  of  publications  was  issued  collecting  information  upon  the 
more  important  subjects  likely  to  be  considered  by  the  convention. 

Some  of  the  work  done  for  conventions  in  other  states  will  be  of 
distinct  use  in  Illinois,  and  some  private  publications  will  be  useful. 
The  publication  in  1918  of  Kettleborough’s  State  Constitutions  makes 
unnecessary  the  preparation  for  the  Illinois  convention  of  a collection 
of  state  constitutions.1 

The  Index-Digest  of  State  Constitutions,  prepared  for  the  New 
York  constitutional  convention  of  1915  gives  in  alphabetical  order  a 
careful  digest  of  the  constitutional  provisions  of  all  of  the  states  in 
1915.  A number  of  changes  have  been  made  since  that  time,  but  these 
can  be  covered  by  a manuscript  supplement  to  the  New  York  Index- 
Digest,  and  the  preparation  of  such  an  index-digest  for  the  constitu 
tional  convention  of  Illinois  is  thus  rendered  unnecessary. 

Copies  of  Kettleborough’s  collection  and  of  the  New  York  Index- 
Digest  will,  through  official  action,  be  made  available  for  all  of  the 
committees  of  the  constitutional  convention  of  this  State. 

In  preparation  for  the  constitutional  convention  to  be  assembled  in 
Illinois  in  1920,  the  Fifty-first  General  Assembly  made  appropriations 
for  the  compilation  of  data  for  the  use  of  delegates.  In  the  compilation 
of  data  it  is  contemplated  that  two  types  of  publications  shall  be  issued 
in  advance  of  the  assembling  of  the  convention : 

(a)  An  annotated  edition  of  the  constitution  of  1870  will  be  pre- 
pared. This  publication  will  give  for  each  clause  of  the  con- 
stitution : 


1 Charles  Kettleborough,  The  State  Constitutions.  B.  F.  Bowen  & Co.,  Indian' 
a,polis,  Ind.,  1918. 


10 


(1)  A summary  outlining  the  judicial  construction  of  the 
clause. 

(2)  A note  of  veto  messages  based  upon  the  clause,  and 

(3)  A note  of  Attorney  General’s  opinions  interpreting  the 
clause. 

With  such  a statement  regarding  each  clause  of  the  consti- 
tution it  is  thought  that  the  delegates  to  the  convention  will  be 
able  to  act  with  respect  to  proposed  changes  in  the  existing  con- 
stitution without  undue  delay. 

(b)  A series  of  small  pamphlets  is  planned,  each  pamphlet 
to  deal  with  some,  one  of  the  important  problems  likely  to 
present  itself  to  the  constitutional  convention.  Pamphlets 
will  be  issued  upon  the  following  subjects: 

(1)  The  procedure  and  problems  of  the  constitutional  con- 
vention. 

(2)  The  initiative,  referendum  and  recall. 

(3)  The  amending  article  of  the  constitution. 

(4)  State  and  local  finance. 

(5)  The  short  ballot. 

(6)  Municipal  home  rule. 

(7)  Eminent  domain  and  excess  condemnation. 

(8)  The  legislative  department. 

(9)  The  executive  department. 

(10)  The  judicial  department,  jury,  grand  jury  and  claims 
against  the  state. 

(11)  Local  governments  in  Chicago  and  Cook  County. 

(12)  County  and  local  government  in  Illinois. 

(13)  Farm  tenancy  and  rural  credits. 

(14)  Social  and  economic  problems. 

(15)  Bill  of  rights,  education,  militia,  suffrage  and  elections, 
preamble,  boundaries,  distribution  of  powers,  schedule. 

The  plan  with  respect  to  each  of  these  pamphlets  is  to  give  as 
fully  as  possible  the  information  upon  the  subject  with  respect . to 
Illinois,  and  data  regarding  experiences  of  other  states  and  countries. 
Each  investigation  will  seek  to  present  merely  the  facts,  and  to  pre- 
sent them  impartially.  It  is  desired  that  the  investigations  should 
cover  every  question  likely  to  come  prominently  before  the  convention 


11 


II.  THE  SCOPE  OF  A STATE  CONSTITUTION. 


The  purpose  of  a state  constitution  is  primarily  that  of  embody- 
ing the  more  fundamental  and  permanent  principles  by  which  the 
state  is  to  be  governed.  The  constitution  should  not  contain  a large 
mass  of  detail.  The  Constitution  of  1818  was  a relatively  brief 
document  containing  little  detail,  and  because  of  this  fact,  would  with 
relatively  few  changes  still  be  a workable  constitution  were  it  now  in 
force.  The  Constitution  of  1848  contained  a great  deal  of  detail. 
For  example,  it  fixed  the  salaries  of  state  officers,  with  the  highest 
salary  that  of  governor  at  $1,500.  This  constitution  also  regulated 
in  detail  the  judicial  organization  of  the  State.  It  was  natural  that 
the  salaries  so  fixed  should  soon  require  change,  and  that  a judicial 
organization  adopted  for  the  State  in  1848  should  have  been  outgrown 
when  the  State  doubled  in  population,  as  it  soon  did. 

A movement  for  this  reason  almost  at  once  began  for  the  revision 
of  the  Constitution,  and  the  people  in  1860  voted  for  the  assembling 
of  a constitutional  convention.  The  Constitutional  Conventions  of 
1862  and  1870  were  made  necessary  by  the  unessential  detail  which 
was  placed  in  the  Constitution  of  1848.  The  Convention  of  1920  has 
largely  become  necessary  because  of  the  details  which  were  placed  in 
the  Constitution  of  1870. 

The  placing  of  details  in  a constitution  is  not  only  the  means  of 
preserving  from  change  the  matters  to  which  such  details  relate,  but 
is  also  the  most  effective  means  of  preventing  improvements  as  to 
that  particular  matter.  Those  desiring  to  put  in  a constitution 
details  as  to  any  particular  matter  should  first  convince  themselves 
that  that  matter  is  one  incapable  of  further  development.  For  what 
is  done  by  placing  the  matter  in  the  Constitution  is  primarily  the  set- 
ting up  of  two  barriers  against  change.  In  order  to  obtain  desired 
legislation  which  may  be  prevented  by  a provision  in  the  Constitution, 
it  becomes  necessary,  first  to  change  the  Constitution,  and  then  to 
enact  the  legislation  made  possible  by  the  constitutional  change.  Those 
desiring  to  place  regulations  as  to  a particular  matter  in  the  Consti- 
tion,  should  balance  in  their  minds  their  desire  to  obtain  constitutional  J 
recognition  for  the  matter  as  against  the  possible  desirability  of  making 
changes  as  to  such  matter  in  the  future. 

A fair  illustration  of  the  manner  in  which  difficulty  may  be  made 
by  placing  a matter  in  the  Constitution  may  be  found  in  the  Nebraska 
Constitution  of  1876.  In  the  convention  which  framed  that  Con- 
stitution some  benevolent  person  desired  to  obtain  a recognition  of  , 
the  principle  of  having  a separate  institution  for  youthful  offenders. 
There  was  of  course  no  objection  to  this  principle  and  a provision 


was  inserted  in  the  Constitution  authorizing  the  legislature  to  establish 
a school  or  schools  for  the  safe  keeping,  education,  employment  and 
reformation  of  all  children  under  the  age  of  16  years.  The  legislature 
later  desired  to  extend  the  age  and  sought  to  do  so  by  legislation.  The 
Supreme  Court  of  the  State,  taking  a view  which  would  have  been 
taken  by  the  highest  court  of  any  state,  held  that  the  constitution 
limits  the  legislature  to  the  establishment  of  schools  for  children  under 
the  age  of  16  years.  Had  the  Constitution  contained  nothing  about 
the  matter,  the  legislature  would  have  been  free  to  act  when  new 
needs  presented  themselves.  (Scott  v.  Flowers,  61  Neb.  621,  1901.) 

Legislation  in  a constitution  presents  serious  dangers,  not  only 
in  that  such  legislation  is  likely  to  retard  future  development  and  to 
force  constitutional  change  at  frequent  intervals,  but  also  because 
detailed  provisions  are  apt  to  lead  to  a good  deal  of  litigation  before 
their  precise  meaning  is  determined.  The  Massachusetts  initiative 
and  referendum  provisions  adopted  in  1918  contain  a great  deal  of 
detail  and  are  likely  to  lead  to  a number  of  judicial  decisions  before 
their  meaning  is  fully  determined.  Brief  constitutional  provisions 
will  of  course  lead  to  judicial  decisions,  and  carefully  phrased  pro- 
visions will  oftentimes  give  rise  to  adjudication  before  their  meaning 
is  fully  made  clear,  but  detailed  provisions  add  greatly  to  the  difficul- 
ties and  the  dangers  of  judicial  construction. 

What  has  been  said  above  may  be  emphasized  by  the  statement 
that  the  rapid  increase  of  judicial  decisions  holding  state  laws  uncon- 
stitutional began  with  the  increased  detail  in  state  constitutions.  Not 
only  this,  but  the  rapid  increase  in  judicial  decisions  of  this  character 
may  be  said  to  date  from  the  development  of  the  doctrine  of  implied 
limitations  in  state  constitutions.  That  is,  a state  constitution  seeks 
to  deal  with  a subject,  and  from  the  constitutional  provisions  dealing 
with  the  subject,  the  court  implies  a denial  of  legislative  authority  to 
deal  with  other  phases  of  the  same  subject.  An  illustration  is  pre- 
sented in  the  Nebraska  case  referred  to  above.  The  Nebraska  Consti- 
tution did  not  prohibit  the  legislature  from  establishing  reform  schools 
for  children  over  the  age  of  16  years,  but  the  Constitution  dealt  with 
the  subject  itself  and  prescribed  a duty  of  the  legislature  with  respect 
to  the  matter.  Courts  might  in  the  beginning  have  taken  the  view 
with  respect  to  such  provisions  that  they  did  not  limit  the  power  of 
the  legislature,  but  merely  commanded  the  legislature  to  do  one  thing 
and  left  full  power  in  the  legislature  to  deal  with  the  subject  in  all 
other  respects.  Such  a judicial  view  might  have  accorded  with  the 
theory  that  state  legislatures  have  all  powers  not  denied  to  them  by 
the  Constitution,  but  the  other  view  has  been  taken  by  the  courts  of 
this  country  since  about  1840,  and  is  the  view  which  has  been  acted 
upon  by  the  framers  of  a large  number  of  state  constitutions.  This 
view  is  likely,  therefore,  to  be  adhered  to,  and  a constitutional  provis- 
ion dealing  with  a subject  is  likely  to  continue  to  be  construed  as  a 
definite  limitation  upon  the  legislature  with  respect  to  that  subject. 

In  theory  a state  constitution  is  primarily  a limitation  upon  legis- 
lative power  and  the  legislature  has  all  powers  not  denied  to  it  by  the 
> constitution.  The  theory  of  judicial  construction  referred  to  in  the 


13 


preceding  paragraph  states  in  reality  an  exception  to  the  n 
the  constitution  is  always  construed  as  if  it  were  a mere  limita 
legislative  power,  but  the  theory  of  construction  here  discusse 
be  borne  in  mind  in  the  framing  of  a new  constitution. 

It  is  not  too  much  to  say  that  a legislature  will  ordinarily  1 
by  a constitutional  provision  much  more  than  the  framers  of 
vision  contemplated.  This  fact  may  be  illustrated  by  an  imp 
cision  of  the  Supreme  Court  of  Illinois.  No  attorney  general 
vided  for  by  the  Constitution  of  1848.  The  Constitution  of 
vides  for  an  attorney  general  with  “such  duties  as  may  be  pre 
law”.  In  view  of  the  fact  that  the  office  of  attorney  general 
constitutional  office  in  1870  and  of  the  fact  that  under  the  co* 
he  was  to  have  “such  duties  as  may  be  prescribed  by  law”,  th 
of  the  constitution  of  1870  may  well  have  thought  that  they  cle 
the  duties  of  the  attorney  general  to  be  prescribed  by  the  g£ 
sembly.  However,  the  Supreme  Court  of  Illinois  in  the  case 
v.  Russel,  270  111.,  304  (1915),  took  the  view  that  the  fram 
constitution  intended  by  the  phrase  “such  duties  as  may  be  j 
by  law”  to  confer  upon  the  attorney  general  all  of  the  duties 
English  attorney  general  had  at  common  law,  and  that  the 
phrase  which  apparently  conferred  a power  upon  the  general 
actually  forbade  the  general  assembly’s  interfering  with  an} 
common  law  duties  of  an  attorney  general.  The  same  view 
taken  with  reference  to  any  institution  which  has  existed  at 
law,  or  which  has  existed  by  previous  statutes  or  by  a previou' 
tution,  unless  care  is  taken  to  make  it  clear  that  a constituti 
vision  regarding  such  an  institution  is  not  intended  to  adopt 
constitution  the  provisions  of  the  common  law  or  the  provisioi 
isting  institutions. 

Reference  is  made  later  to  the  difficulties  occasioned  by 
that  the  framers  of  the  Constitution  of  1870  inserted  the  w 
heretofore  enjoyed”  into  the  constitutional  guarantee  of  jury  tr 

Another  case  should  be  referred  to  as  indicating  the  da 
elaborate  details  in  a constitution.  The  framers  of  the  propos 
York  constitution  of  1915  worked  out  in  detail  a scheme  for 
solidation  of  state  executive  departments,  and  in  this  sche* 
language  which  implied  that  each  existing  office  or  institution 
remain,  but  that  all  offices  were  to  be  classified  into  17  group 
proposed  constitution  was  rejected  and  in  connection  with  any 
an  effective  executive  re-organization  this  rejection  was  wise, 
the  details  in  the  proposal  would,  without  the  intention  of  the 
have  saddled  upon  the  State  a complex  executive  organizatio 
preservation  of  existing  offices  and  would  not  have  worked  a 
simplification  which  was  sought  by  the  framers  of  the  proposal. 

To  some  extent,  however,  the  facts  have  justified  the  plac 
detailed  provisions  in  state  constitutions.  For  example,  an  ; 
ment  was  adopted  to  the  New  York  Constitution  in  1913  with 
to  the  authority  of  the  legislature  over  compensation  of  injur 
ployees.  This  amendment  was  directly  made  necessary  by  the 
view  of  “due  process  of  law”  taken  by  the  Court  of  Appeals 


14 


he  case  of  Ives  v.  South  Buffalo  Railway  Company,  201 

1. 

constitutional  amendments  of  1912  with  respect  to  the  eight- 
on  public  works,  workmen’s  compensation  and  several  other 
ere  made  necessary  either  by  decisions  of  the  Ohio  courts  or 
)ns  which  it  was  thought  such  courts  would  make  if  certain 
egislation  were  enacted.  That  is,  in  a fair  number  of  cases 
>ct  to  social  and  industrial  matters,  the  courts  have  directly 
placing  of  provisions  in  state  constitutions,  in  order  to  over- 
ow  decisions  or  in  order  to  avoid  possible  future  decisions, 
constitutional  provisions  of  this  type  are  not  numerous,  and 
any  way  account  for  the  great  mass  of  detail  which  may  now 
in  state  constitutions  with  respect  to  social  and  industrial 
and  with  respect  to  other  matters. 

lear  that  an  easier  amending  process  is  needed  in  this  State, 
h the  Constitution  be  made  less  detailed  than  at  present,  but 
an  easy  amending  process  a great  deal  of  detail  in  the  Con- 
still  a means  of  preventing  or  retarding  progress, 
ler  argument  against  increasing  the  detail  in  state  constitu- 
ld  be  referred  to.  Under  state  constitutions  as  they  now  ex- 
s country,  putting  a matter  in  the  constitution  means  that  the 
y to  change  it  is  by  a popular  vote.  That  is,  as  to  constitu- 
'ovisions,  there  is  outside  of  Delaware  a compulsory  refer- 
n order  to  obtain  a change,  although  in  a few  state  constitu- 
.ters  of  a clearly  temporary  character  have  occasionally  been 
made  subject  to  legislative  authority.  However,  it  is  gener- 
that  putting  a matter  into  the  constitution  means  that  there 
a popular  vote  in  order  to  change  that  matter,  no  matter  how 
ant  it  may  be.  Whatever  may  be  said  in  favor  of  an  optional 
im  (that  is,  of  a power  in  a certain  proportion  of  the  voters  to 
oopular  vote  upon  a measure),  there  is  little  to  be  said  in  favor 
dan  which  forces  popular  voting  upon  unimportant  matters, 
•ive  of  whether  any  of  the  voters  desire  that  such  matter  be 
id  or  not.  The  increased  detail  of  state  constitutions  increases 
:ers  that  must  be  submitted  to  popular  vote  irrespective  of  any 
for  such  a vote,  and  in'  a large  number  of  the  states  during  the 
years  proposals  submitted  by  the  legislatures  as  constitutional 
lents  (and  necessarily  submitted  to  popular  vote),  have  been 
iss  important  than  proposals  submitted  in  the  form  of  ordinary 
on.  In  the  State  of  California  since  1900  one  hundred  and 
,osed  constitutional  amendments  have  been  submitted,  and 
these  proposed  amendments  have  been  rendered  necessary  by 
that  a large  mass  of  detail  has  been  inserted  into  the  constitu- 
)f  course,  it  is  possible  to  insert  a great  deal  of  detail  in  the 
ution  and  to  make  such  detail  alterable  by  ordinary  legislative 
with  a referendum  provided  a popular  petition  requires  a refer- 
upon  such  matters.  This,  however,  is  merely  to  say  that  if  the 
were  one  to  be  left  to  ordinary  legislative  action  it  should  have 
nitted  from  the  constitution. 


III.  PROBLEMS  OF  DRAFTSMANSHIP. 


A constitutional  convention  differs  from  the  regular  legislative 
body  in  several  important  respects.  The  convention  will  deal  with 
but  one  document  which  is  fairly  brief  and  all  of  whose  provisions 
-must  harmonize  with  each  other.  A legislative  body  ordinarily  deals 
with  hundreds  of  proposals,  relating  to  different  matters,  and  without 
a necessity  that  each  proposal  harmonize  completely  with  each  other 
proposal.  The  legislative  body  is  throughout  a session  of  some  months 
acting  upon  and  adopting  a number  of  laws,  and  if  a law  passed 
earlier  in  the  session  conflicts  with  one  adopted  later  in  the  same 
session  (as  is  often  the  case)  the  difficulty  may  be  solved  by  the  rule 
that  the  later  act  replaces  the  earlier  in  so  far  as  there  is  conflict.  No 
such  possibility  presents  itself  to  a constitutional  convention. 

The  proposals  of  a convention  will  presumably  be  agreed  to  and 
submitted  to  the  people  at  the  same  time,  and  in  view  of  this  fact  the 
problem  of  careful  draftsmanship  and  of  harmonizing  all  provisions 
is  much  more  important  than  in  a regular  legislative  body.  Not  only 
this,  but  a constitution  is  likely  to  remain  for  a long  time  unchanged. 
Each  part  of  it  will  be  judicially  interpreted,  and  will  be  interpreted  in 
view  of  earlier  constitutional  provisions  and  of  decisions  based  upon 
such  earlier  provisions.  There  is  of  course  need  of  great  care  in  the 
draftsmanship  of  statutes,  but  there  is  even  greater  need  for  care  in 
the  drafting  of  an  instrument  which  may  continue  in  force  for  a period 
of  fifty  years,  as  has  been  the  case  with  the  present  constitution  of 
Illinois. 

Language  of  the  present  constitution  to  which  there  is  no  objection 
should  be  left  unchanged,  for  to  change  such  language  with  a notion 
of  making  it  clearer  or  with  a notion  of  adopting  better  English,  is 
apt  merely  to  raise  questions  of  interpretation  which  must  go  to  the 
courts  for  decision.  Language  which  on  its  face  does  not  seem  to 
mean  what  if.  desired,  but  which  by  judicial  interpretation  has  ob- 
tained a meaning  that  is  satisfactory,  should  also  be  left  as  it  isy 
for  here  again  to  make  a change  is  merely  to  invite  difficulty. 

Attention  is  called  below  to  the  questions  which  have  presented 
themselves  because  the  framers  of  the  constitution  of  1870  varied  the 
phraseology  of  the  guarantee  of  jury  trial.  The  Illinois  constitution 
of  1870  is  on  the  whole  a well  drafted  document,  but  numerous 
matters  of  phraseology  in  it  have  made  difficulty,  although  they  were 
probably  not  of  importance  in  the  substance  of  the  constitution  as 
framed. 

Certain  types  of  difficulties  which  have  presented  themselves  in 
the  constitution  of  1870  are  commented  upon  below,  not  for  the  pur- 
pose of  criticizing  in  any  way  the  work  of  the  convention  of  1869-70, 


16 


but  for  the  purpose  of  indicating  things  that  should  be  avoided  in  the 
drafting  of  a new  constitution  or  in  the  drafting  of  changes  in  the 
existing  constitution. 


The  use  of  language  which  may  be  given  a more  extended 
meaning  than  was  intended:  The  Constitution  of  1870  guarantees 
the  right  of  jury  trial  “as  heretofore  enjoyed.”  These  words  had  not 
appeared  in  the  constitutions  of  1818  and  1848,  and  their  addition  in 
1870  was  probably  nothing  more  than  a rhetorical  flourish.  The 
question  necessarily  presented  itself  to  the  Supreme  Court,  however, 
as  to  whether  the  jury  trial  so  adopted  was  the  jury  trial  as  it  existed 
by  statute  in  1870,  so  that  such  statutes  became  substantially  unalter- 
able. Such  a result  was  denied  in  the  case  of  George  v.  People,  167 
111.  447,  (1897)  pp.  456-458.  As  the  court  said,  if  such  an  interpreta- 
tion were  given,  the  general  assembly  would  be  powerless  to  abolish 
written  instructions  to  juries  or  to  alter  the  numerous  statutory  details 
as  to  jury  trial.  Both  before  and  after  the  George  case,  however,  the 
Supreme  Court  has  resorted  to  statutes  in  force  between  1818  and  1870 
to  determine  what  was  jury  trial  “as  heretofore  enjoyed,”  although 
such  resort  has  been  had  to  support  rather  than  to  defeat  legislative 
power.  Borg  v.  C.  R.  I.  & P.  Ry.  Co.,  162  111.  348  {1896 ) pp.  352, 
353;  Spring  Valley  v.  Spring  Valley  Coal  Co.,  173  111.  497  (1898)  p. 
503  et  seq.  So  far  as  can  be  determined  the  effect  of  the  pharse  “a" 
heretofore  enjoyed”  is  that:  (1)  it  does  not  keep  in  effect  as  cor..  * 
tional  requirements  the  statutory  provisions  existing  in  1870,  nor  pi. 
vent  changes  in  details  of  legislation  in  force  in  1870  as  to  jury  trial; 
(2)  it  does  permit  new  legislation  affecting  jury  trial  provided  a 
similar  type  of  legislation  was  in  force  in  this  state  before  1870. 

Reference  has  previously  been  made  to  the  decision  of  Fergus  v. 
Russel,  270  111.  304,  and  to  the  broad  construction  there  given  to  the 
powers  of  the  Attorney  General  under  the  constitution  of  1870.  In 
order  to  accomplish  the  purpose  of  leaving  the  duties  of  attorney 
general  subject  to  legislative  control,  the  constitution  makers  would 
have  had  not  merely  to  grant  power  to  the  general  assembly,  but  also 
to  insert  an  express  denial  of  common  law  powers  independently  of 
legislation.  An  apparent  grant  of  power  to  the  general  assembly  by 
the  constitution  became  a grant  of  authority  to  the  attorney  general  and 
a denial  of  power  to  the  general  assembly. 

So,  the  creation  of  the  office  of  sheriff  carries  to  that  office  com- 
mon law  functions  which  can  not  be  withdrawn  by  legislative  act,  and 
this  view  has  in  Illinois  a better  logical  argument  in  its  support  than  has 
the  case  of  Fergus  v.  Russell,  for  the  sheriff  has  been  a constitutional 
officer  in  Illinois  since  1818.  Dahnke  v.  People,  168  111.  102  (1907). 

Constitutional  provisions  creating  the  offices  of  state  auditor, 
secretary  of  state  and  state  treasurer,  also  appear  to  confer  constitu- 
tional powers  upon  these  officers,  although  tliev  are  not  common  law 
officers,  and  although  the  constitution  as  to  them  also  provides  that 
they  “shall  perform  such  duties  as  may  be  prescribed  by  law.” 


17 


Since  about  1840,  implied  limitations  in  state  constitutions  have 
come  to  play  through  judicial  construction  almost  as  large  a share  as 
express  limitations,  and  if  undesired  implied  limitations  are  to  be 
avoided  language  must  be  carefully  chosen,  and  implications  already 
drawn  by  the  courts  of  this  and  other  states  in  certain  cases  must  be 
expressly  negatived. 


Similar  clauses  used  in  several  parts  of  the  Constitution:  The 

constitution  of  1870  requires  a two-thirds  vote  of  the  two  noascs  of 
the  general  assembly  m hve  cases;  in  the  passage  ol  eineigencv 
measures,  (Art.  IV,  Sec.  13)  ; in  increasing  the  aggregate  amount  of 
appropriations  once  made,  (Art.  IV,  Sec.  18)  ; in  the  passage  oi  bills 
over  the  governor’s  veto,  (Art.  V,  Sec.  16)  ; in  the  proposal  ot  amend- 
ments to  the  constitution,  (Art.  XIV,  Sec.  2)  ; and  in  the  submission 
to  popular  vote  of  the  question  of  calling  a constitutional  convention, 
(Art.  XIV,  Sec.  1).  In  four  of  these  cases  the  constitution  specifies 
a vote  of  two-thirds  of  the  members  “elected”  to  each  of  the  two 
houses ; in  one  case  it  specifies  “two-thirds  of  the  members  of  each 
house,”  (Art.  XIV,  Sec.  1).  Under  general  rules  of  judicial  con- 
struction a difference  in  language  may  in  so  important  a document  as 
a constitution  be  presumed  to  intend  a difference  of  meaning,  and  it 
would  be  easily  possible  to  construe  “two-thirds  of  the  members  of 
ea^h  house”  to  mean  two-thirds  of  a quorum,  rather  than  two-thirds 
of  -T’ 3 sleeted.  In  fact  judicial  decisions  in  other  states  would  sup- 
p*vj.  rsuch  a construction,  (Green  v.  Weller,  32  Miss.  650  (1856,;  State 
v.  McBride,  4 Mo.  303  (1836),  and  a view  supporting  such  a con- 
struction has  also  been  recently  taken  by  the  United  States  Supreme 
Court,  Missouri  Pacific  Ry.  Co.  v.  Kansas,  248  U.  S.  276  (1919).  Yet 
the  difference  in  language  in  the  clauses  here  discussed  was  almost 
certainly  a matter  of  pure  accident. 

The  constitution  of  1870  contains  a number  of  provisions  with 
respect  to  popular  votes : 


Art. 

IV, 

Sec. 

18, 

Contracting  state  debt ; 

Art. 

IV, 

Sec. 

33, 

Appropriations  for  construction  of  state 
house ; 

Art. 

x, 

Sec. 

2, 

Division  of  counties ; 

Art. 

X. 

Sec. 

4, 

Removal  of  county  seats  ; 

Art. 

X, 

Sec. 

5, 

Adoption  and  abandonment  of  township 
organization ; 

Art. 

XI, 

Sec. 

5, 

Adoption  of  banking  laws ; 

Act. 

XIV,  Sec. 

1, 

Vote  upon  constitutional  convention,  and 
upon  proposals  submitted  by  convention ; 

Art. 

XIV,  Sec. 

2, 

Vote  upon  proposed  constitutional  amend- 
ments. 

Separate  Section,  Vote  on  question  of  sale  or  lease  of  Illinois 
and  Michigan  Canal. 

In  some  of  these  provisions  differences  in  language  were  clearly 
intended  to  adopt  different  rules,  but  this  was  not  true  in  all  cases.  For 


18 


example,  Art.  X,  Sec.  5,  provides  for  the  adoption  of  the  township 
system  “by  a majority  of  the  legal  voters  of  such  county,  voting  at  any 
general  election”,  and  for  the  abolition  of  the  township  system  if  at  a 
general  election  “a  majority  of  all  the  votes  cast  upon  that  question 
shall  be  against  township  organization”.  It  seems  pretty  clear  that  no 
difference  in  meaning  was  here  intended,  and  that  the  purpose  of  the 
constitutional  convention  of  1870  was  that  merely  of  adding  a provision 
for  the  abolition  of  the  township  system  by  the  same  vote  as  that  re- 
quired to  establish  the  system,  carrying  out  the  principle  laid  down  by 
the  State  Supreme  Court  in  People  ex  rel.  Manier  v.  Couchman,  15  111., 
142  (1853). 

So,  with  respect  to  indebtedness  and  expenditures,  Art.  IV,  Sec. 
33,  requires  a majority  of  all  votes  cast  at  a general  election  to  author- 
ize additional  expenditures  for  the  construction  of  the  state  house; 
while  Art.  IV,  Sec.  18,  requires  for  the  incurring  of  indebtedness  by 
the  State  in  excess  of  $250,000,  a majority  of  the  votes  cast  for  mem- 
bers of  the  general  assembly. 

For  the  calling  of  a constitutional  convention,  the  constitution 
(Art.  XIV,  Sec.  1)  requires  a majority  of  those  voting  at  a general 
election.  For  the  adoption  of  a constitutional  amendment  it  requires 
(Art.  XIV,  Sec.  2)  a submission  “at  the  next  election  of  members  of 
the  general  assembly”  with  “a  majority  of  the  electors  voting  at  said 
election”.  Under  this  latter  clause  the  argument  was  a plausible  one 
that  the  difference  in  phraseology  was  intentional  and  made  the  vote 
for  members  of  the  general  assembly  the  test  by  which  to  determine 
whether  an  amendment  had  been  adopted.  In  order  to  settle  this  issue 
a decision  of  the  Supreme  Court  was  necessary,  and  this  decision  was 
by  a divided  court.  People  v.  Stevenson,  281  111.,  17  (1917). 

Throughout  the  whole  of  the  Constitution  of  1870  runs  the  prin- 
ciple that  the  compensation  of  officers  shall  not  be  increased  or  dimin- 
ished during  their  terms.  Provisions  with  respect  to  this  matter  appear 
in  the  Constitution  at  least  eight  times  (Art.  IV,  Sec.  21,  Sec.  22,  Cl. 
20 ; Art.  V,  Sec.  23 ; Art.  VI,  Secs.  7,  16,  25 ; Art.  IX,  Sec.  11 ; Art  X, 
Sec.  10),  and  are  reinforced  by  still  another  provision  (Art.  IV,  Sec. 
19).  It  has  required  a decision  of  the  Supreme  Court  to  determine  that 
the  differently  phrased  clauses  mean  tlie  same  thing.  Foreman  v.  Peo- 
ple, 209  111.,  567  (1904).  A single  clause  stating  one  principle  would 
have  been  wiser.  See  also  People  ex  rel.  Holdom  v.  Schweitzer,  280 
111.,  436  (1917). 

The  Constitution  of  1870  expressly  prohibits  any  member  of  the 
general  assembly  being  interested  in  contracts  with  the  State  or  any 
county  authorized  by  a law  passed  during  his  term,  (Art.  IV,  Sec.  15)  ; 
prohibits  members  of  the  General  Assembly  or  other  officers  of  the 
State  being  interested  in  printing  and  certain  other  contracts  (Art.  IV, 
Sec.  25)  ; and  also  expressly  prohibits  teachers  and  school  officers  being 
interested  in  school  supplies  (Art.  VIII,  Sec.  4). 

The  question  as  to  the  effect  of  these  three  provisions  upon  legis- 
lative power  has  not  presented  itself  to  the  Supreme  Court  of  this 
State,  but  under  the  view  taken  by  the  Supreme  Court  in  the  case  of 
People  ex  rel.  Floyne  v.  McCormick,  261  111.,  413  (1914),  the  view 


19 


might  well  be  taken  that  the  Constitution  by  prohibiting  certain  types 
of  interests  in  contracts,  by  implication  prevents  the  general  assembly 
from  forbidding  any  other  officers  being  interested  in  contracts  and  in 
fact  guarantees  them  by  the  Constitution  a right  to  be  so  interested. 
This,  of  course,  was  not  the  purpose  of  the  framers  of  the  Constitu- 
tion, but  illustrates  the  possible  dangers  of  dealing  with  a matter  piece- 
meal  in  different  parts  of  the  Constitution.  It  is  much  better  in  a 
matter  of  this  kind  to  deal  with  the  subject  by  one  provision,  as  is  done 
in  the  Constitution  of  1870  with  respect  to  the  extension  of  terms  of 
office  (Art.  IV,  Sec.  28). 

With  respect  to  special  and  private  legislation  also  a policy  of 
prohibition  runs  throughout  the  Constitution.  Upon  this  subject  there 
is  a series  of  clauses : 


Art.  IV,  Sec.  22, 

Art.  IV,  Sec.  16, 
Art.  IX,  Sec.  3, 

Art.  X,  Sec.  11, 

Art.  X,  Sec.  5. 

Art.  XI,  Sec.  1, 


Prohibits  local  or  special  legislation  in. twenty- 
three  enumerated  cases. 

Prohibits  appropriations  in  private  laws. 
Requires  that  exemptions  from  taxation  be 
only  by  general  law. 

Provides  that  fees  shall  be  fixed  only  by  gen- 
eral law. 

Forbids  special  laws  with  reference  to 
township  organization. 

Forbids  the  creation  of  corporations  by  special 
laws. 


These  provisions  are  supplemented  by  provisions  requiring  that 
laws  relating  to  the  courts  be  general  and  of  uniform  operation  (Art. 
VI,  Sec.  29),  and  that  the  jurisdiction  of  justices  and  police  magistrates 
be  uniform  (Art.  VI,  Sec.  21). 

To  find  what  is  prohibited  as  special  legislation  therefore  requires 
a search  of  the  whole  text  of  the  Constitution.  In  some  cases  judicial 
construction  of  these  clauses  has  restricted  their  application.  On  the 
basis  of  Fergus  v.  Russel,  277  111.,  20  (1917)>  the  prohibition  of  appro- 
priations of  money  in  private  laws  means  less  than  its  language  seems 
to  mean.  On  the  other  hand  the  prohibition  of  local  or  special  laws 
“granting  to  any  corporation,  association  or  individual  any  special  or 
exclusive  privilege,  immunity  or  franchise  whatever”,  has  come-  by 
interpretation  to  mean  much  more  than  its  language  seems  to  mean. 


Language  permitting  or  leading  to  technical  constructions: 

An  effort  should  be  made  in  drafting  a constitution  to  avoid  imposing 
upon  the  courts  the  necessity  of  determining  whether  “or”  is  used  in 
the  sense  of  “and,”  and  other  types  of  technical  constructions. 
Article  IX,  Sec.  9,  of  the  Constitution  provides  for  local  im- 
provements “by  special  assessments  or  by  special  taxation  of 
contiguous  property  or  otherwise.”  The  phrase  here  would  appear 
to  permit  a combination  of  special  assessments  and  special  taxation, 
but  the  Supreme  Court  has  held  the  “or”  of  this  clause  to  make  neces- 
sary the  use  of  one  or  the  other  methods,  so  that  the  words  “or  other- 


20 


wise”  mean  “or  otherwise  than  by  special  assessments  alone  or  by 
special  taxation  alone”,  although  the  court  also  says  it  is  proper  to 
combine  special  assessments  with  general  taxation  or  special  taxation 
with  general  taxation.  A different  interpretation  of  the  word  “or” 
would  have  been  easily  possible,  especially  with  that  word  modified 
> by  the  words  “or  otherwise”.  Kuehner  v.  City  of  Freeport,  143  111., 
92  (1892). 

Perhaps,  however,  the  most  technical  case  of  constitutional  con- 
struction in  Illinois  is  that  which  relates  to  the  qualifications  of  county 
I commissioners.  In  Article  X,  Sec.  6,  the  Constitution  provides  that 
in  counties  not  under  township  organization,  three  officers  shall  be 
elected  to  be  known  as  “the  board  of  county  commissioners”,  quoting 
the  title  of  the  board.  Section  7 of  the  same  article  provides  for  “a 
board  of  commissioners  of  fifteen  persons”  for  Cook  County,  not 
quoting  the  name  of  the  board.  Elsewhere  in  the  Constitution  these 
boards  are  both  referred  to  as  “the  county  board”.  In  Article  VI, 
Sec.  17,  (a  section  which  should  have  limited  itself  entirely  to  judicial 
matters)  qualifications  are  prescribed  for  membership  in  the  “board 
of  county  commissioners”,  the  title  being  quoted.  The  Supreme 
Court  held  that  the  qualifications  prescribed  in  Art.  VI,  Sec.  17  did 
not  apply  to  Cook  County  and  could  not  be  made  so  to  apply  by  legis- 
lation, because  the  Cook  County  board  was  referred  to  elsewhere  as 
“a”  board,  and  because  of  the  use  made  of  quotation  marks.  People 
ex  rel.  Hoyne  v.  McCormick,  261  111.,  413  (1914). 

While,  as  indicated  above,  statements  in  varying  language  may  be 
held  to  mean  the  same  thing,  slight  variations,  as  in  this  case,' may  be 
held  to  establish  a material  difference  in  meaning. 

Language  when  it  has  been  put  into  a constitution  is  oftentimes 
capable  of  an  interpretation  different  from  that  which  its  framers 
may  have  intended,  and  for  this  reason  slight  differences  in  phrase- 
I ology  oftentimes  become  important.  In  Art.  XIV,  Sec.  1 of  the  Con- 
stitution of  1870,  it  is  provided  that.. delegates  to  a constitutional  con- 
vention shall  be  elected  “in  the  same  manner”  as  members  of  the 
Senate.  This  language  was  probably  used  without  a great  deal  of 
attention,  but  has  almost  necessarily  been  construed  to  require  the 
partisan  nomination  and  election  of  delegates  to  a constitutional  con- 
vention, a result  which  clearly  could  not  have  been  intended. 

The  Constitution  of  1870  permits  the  creation  of  probate  courts 
in  each  county  having  a population  of  over  50,000.  It  would  be  easily 
possible  under  this  provision  for  the  court  to  have  said  that  the 
general  assembly,  if  it  were  to  create  probate  courts  at  all,  must  create 
probate  courts  for  all  counties  with  a population  of  over  50,000,  al- 
though the  court  actually  reached  the  opposite  view  (Knickerbocker 
v.  People  ex  rel.  Butz,  102  111.,  218).  The  provision  of  the  Constitu- 
tion of  1870  providing  for  the  creation  of  appellate  courts,  in  pre- 
scribing the  jurisdiction  of  such  courts  might  easily  have  been  inter- 
preted by  the  Supreme  Court  to  vest  an  intermediate  appellate  juris- 
diction in  certain  types  of  cases  independently*  of  legislative  action 
once  the  appellate  courts  were  established,  and  in  fact  the  language 
could  perhaps  more  readily  be  construed  in  that  way  were  it  not  for 


21 


the  fact  that  such  a construction  would  materially  handicap  the  general 
assembly  in  its  powers  with  respect  to  the  judicial  system  of  the  State! 


Other  types  of  difficulties  with  respect  to  draftsmanship : 

Difficulties  of  other  types  also  present  themselves  in  constitutional 
draftsmanship.  For  example,  the  use  of  definitions  in  a constitution 
is  apt  to  be  dangerous,  and  the  definition  of  the  word  “office”  in 
Article  V,  Section  24,  has  made  a good  deal  of  difficulty  by  drawing  a 
rather  artificial  distinction  with  respect  to  appropriations  under  Article 
IV,  Section  16.  This  difficulty  has  not  been  fully  met  by  the  decision 
of  the  State  Supreme  Court  in  Fergus  v.  Russel,  270  111.,  304;  nor  by 
the  decree  of  the  lower  court  in  the  same  case,  discussed  in  the  Opin- 
ions of  the  Attorney  General,  1916,  pp.  13-24. 

With  respect  to  the  re-apportionment  of  judicial  areas,  Art.  VI, 
Sec.  13  provides  for  changes  of  circuits  at  a legislative  session  “next 
preceding  the  election  for  circuit  judges,  but  at  no  other  time”.  Under 
the  Constitution  circuit  judges  are  all  elected  at  the  same  time,  and 
this  provision  makes  no  difficulty.  With  respect  to  Supreme  Court 
judges,  however,  a similar  provision  in  Article  VI,  Sec.  5 makes  diffi- 
culty, because  all  Supreme  Court  judges  are  not  elected  at  the  same 
time.  In  case  one  judge  only  was  to  be  elected  at  a certain  time,  his 
district  could  be  changed  only  at  a session  preceding  that  election, 
and,  if  the  Constitution  were  to  be  construed  literally  no  other  district 
could  be  changed  at  that  time.  The  Supreme  Court  had,  therefore,  to 
deny  any  power  to  change  or  to  hold  that  in  changing  one  district 
there  was  power  to  make  incidental  changes  in  other  districts.  People 
ex  rel.  Vandeventer  v.  Rose,  203  111.,  46  (1903). 

In  some  cases  the  adoption  by  reference,  for  another  purpose,  of 
a clause  elsewhere  in  the  Constitution  may  lead  to  an  unexpected  re- 
sult. For  example,  it  is  probable  that  the  qualifications  for  delegates 
to  a constitutional  convention,  prescribed  in  Article  XIV,  Sec.  1,  were 
not  purposely  intended  to  disqualify  members  of  the  two  houses  of 
the  general  assembly. 

In  some  cases  it  will  be  desirable  to  bring  into  closer  relationship 
provisions  in  the  present  Constitution  dealing  with  the  same  subject. 
Some  of  the  remarks  above  relate  to  this  matter.  Certainly,  qualifica- 
tions of  members  of  boards  of  county  commissioners  should  not  be  in 
an  article  dealing  with  the  judicial  department  (Art.  VI,  Sec.  17). 
Provisions  now  in  three  parts  of  the  Constitution  dealing  with  eminent 
domain  may  well  be  brought  together  (Art.  II,  Sec.  13 ; Art.  IV,  Sec. 
30;  Art.  XI,  Sec.  14). 

Particular  attention  should  be  called  to  the  fact  that  the  greater 
the  detail  in  a constitution,  the  greater  is  the  danger  due  to  defects  of 
draftsmanship.  The  danger  here  dealt  with  is  not  the  danger  due  to 
the  fact  that  conditions  may  change  so  as  to  make  detailed  constitu- 
tional regulations  inapplicable,  but  the  danger  that  in  drafting  pro- 
visions they  may  be  so  worded  as  to  mean  something  not  fully  in- 
tended by  their  framers. 


22 


Nothing  said  here  is  intended  to  conflict  with  the  views  that  a 
constitutional  provision  ought  not  to  be  changed  merely  to  adopt  a 
better  phraseology,  if  the  provision  as  now  interpreted  means  what  it 
is  desired  to  have  it  mean;  but  uniformity  of  phraseology  is  always 
desirable  where  two  clauses  mean  the  same  thing  and  there  is  no 
danger  in  establishing  uniformity  in  such  cases,  either  before  or  after 
judicial  construction  of  the  phrases. 


IV.  PROCEDURE  OF  THE  CONSTITUTIONAL 
CONVENTION. 


Submission  of  convention’s  work:  The  procedure  of  the  con- 

vention will  vary  somewhat  in  accordance  with  the  number  of  changes 
to  be  made  in  the  Constitution  and  with  the  method  of  submitting  the 
convention’s  work  to  popular  vote.  The  convention  of  1869-70  sub- 
mitted its  work  in  the  form  of  nine  separate  proposals,  one  proposal 
containing  a revised  constitution  and  the  eight  other  proposals  consti- 
tuting the  more  seriously  controverted  problems  acted  upon  by  the 
convention. 

The  convention  of  1869-70  set  a wise  precedent  for  the  conven- 
tion of  1920.  There  will  be  a number  of  issues  before  the  convention 
of  1920  which  are  seriously  controversial  in  character  and  upon  which 
the  people  will  wish  an  opportunity  and  should  have  an  opportunity' 
to  express  themselves  separately.  On  the  other  hand,  there  are  a num- 
ber of  non-controversial  matters  in  the  present  Constitution  which 
need  to  be  changed,  and  to  submit  each  of  these  matters  as  an  in- 
dependent proposition  would  be  useless,  and  would  place  an  unreason- 
able burden  upon  each  voter.  Such  non-controversial  matters  might 
well  be  submitted  as  a unit  in  a revised  constitution,  if  the  convention 
sees  fit  to  do  this.  Under  this  plan  the  voters  would  be  able  to  pass  as 
a unit  upon  non-controversial  matters  and  to  pass  separately  upon 
each  matter  of  a controversial  character  or  of  distinct  popular  in- 
terest. It  would  be  foolish  to  submit  a series  of  separate  propositions 
to  the  voters  as  to  such  matters  as  the  amendment  of  prior  laws  by 
reference  to  their  titles,  the  reading  of  bills  three  times  in  each  house 
of  the  general  assembly,  etc. 

The  Ohio  convention  of  1912  submitted  42  separate  constitutional 
changes  to  the  people.  The  Massachusetts  convention  of  1917-19  sub- 
mitted three  questions  to  be  voted  upon  at  one  election  and  nineteen 
questions  to  be  voted  upon  at  another  election.  With  forty-two  ques- 
tions submitted,  the  plan  of  separate  submission  becomes  too  burden- 
some, but  there  should  be  no  difficulty  about  submitting  to  the  voters 
of  Illinois  each  controversial  question  separately  and  the  non-controv- 
ersial matters  as  a single  unit. 

The  long  intervals  which  elapse  between  the  meetings  of  constitu- 
tional conventions  make  it  desirable  that  the  convention  should  under- 
take a complete  re-examination  of  the  existing  constitution  in  order  to 
make  changes  either  of  addition  or  of  omission  which  may  have  be- 
come necessary  since  the  framing  of  the  present  Constitution.  How- 
ever, such  a complete  re-examination  can  be  had,  and  the  work  of  the 
convention  submitted  without  the  undue  multiplication  of  issues  to  be 
separately  presented  to  the  voters. 


24 


Length  of  conventions : The  political  situation  in  the  year 
1920  makes  it  desirable  that  the  convention  should  complete  its  work 
and  submit  its  proposals  to  the  people  as  promptly  as  possible.  A 
presidential  year  is  not  a good  one  in  which  to  submit  matters  which 
should  be  deliberated  upon  carefully  by  the  voters,  even  though  the 
questions  are  to  be  submitted  at  a special  election.  It  is  desirable  if 
possible  that  the  convention’s  work  be  passed  upon  by  the  people  be- 
fore the  excitement  of  the  State  primary  and  of  the  presidential  cam- 
paign. 

The  convention  of  1869-70  assembled  on  December  13,  1869,  and 
adjourned  on  May  13,  1870,  but  took  a recess  from  March  7 to  April 
12,  1870.  In  the  convention  of  1870  a great  deal  of  time  was  wasted 
in  the  preliminary  organization,  primarily  because  of  the  discussion  of 
the  oath  to  be  taken  by  the  delegates.  There  seems  to  be  no  reason 
why  the  convention  of  1920  should  not  be  able  to  organize  promptly 
and  to  complete  its  work  within  a period  of  four  months. 


Rules  and  committee  organization:  With  a single  specific 

object  before  it,  a convention  should  adopt  rules  primarily  for  the  pur- 
pose of  accomplishing  the  following  purposes:  (1)  to  obtain  full 

debate  upon  and  deliberate  consideration  of  each  proposal  of  constitu- 
tional change;  (2)  to  assure  that  every  important  proposal  is  disposed 
of  only  in  accordance  with  the  affirmative  wishes  of  the  convention ; 
and  (3)  to  have  the  work  of  revision  or  amendment  carefully  phrased 
for  submission  to  the  people,  without  an  undue  prolongation  of  the 
session  of  the  convention. 

In  a convention,  as  in  a legislative  body,  the  organization  of  com- 
mittees is  the  most  essential  problem.  In  the  framing  of  a constitution 
it  may  be  possible  for  a convention  to  conduct  all  of  its  work  directly 
in  convention,  that  is,  acting  as  a body  without  going  into  committee 
of  the  whole  or  dividing  the  work  among  committees.  But  such  a plan 
would  be  cumbersome  and  unsatisfactory,  and  has  not  been  employed. 
In  the  use  of  committees  conventions  have  employed  three  methods: 
(1)  the  transaction  of  business  mainly  in  committee  of  the  whole,  with 
perhaps  some  smaller  committees  appointed  to  handle  particular  mat- 
ters ; (2)  the  appointment  of  one  small  committee  with  power  to  draft 
a proposed  constitution  and  submit  it  for  the  consideration  of  the 
whole  convention,  either,  in  committee  of  the  whole  or  otherwise;  (3) 
the  appointment  of  a number  of  committees  and  the  apportionment 
among  them  of  the  subjects  to  be  covered  by  the  constitution,  such 
committees  to  report  to  the  convention,  as  such,  or  to  the  convention  in 
committee  of  the  whole. 

The  more  usual  practice  has  been  for  a convention  to  appoint  a 
number  of  committees  and  to  distribute  among  them  the  several  parts 
of  the  constitution,  to  be  considered  and  reported  upon  to  the  conven- 
tion either'  in  regular  session  or  in  committee  of  the  whole.  The  num- 
ber of  committees  appointed  for  such  a purpose  has  varied  consider- 
ably, running  from  four  in  one  case  to  more  than  thirty  in  others. 


25 


The  number  of  committees  will,  of  course,  vary  with  the  work  to 
be  done  by  a convention,  but  if  all  parts  of  a constitution  are  to  be  ex- 
amined with  care  there  should  be  a separate  committee  for  each  im- 
portant subject.  Separate  committees  will  also  be  necessary  to  deal 
with  questions  which  are  at  the  time  of  great  popular  interest,  because 
an  effort  will  naturally  be  made  to  have  these  subjects  dealt  with  in 
the  constitution.  For  example,  should  a convention  be  assembled  in 
Illinois,  it  would  be  appropriate  to  have  a separate  committee  upon  the 
initiative  and  referendum.  The  New  York  convention  of  1894  had 
thirty-one  committees;  the  New  York  convention  of  1915,  thirty  com- 
mittees ; the  Virginia  convention  of  1901-02,  sixteen  committees  ; the 
Michigan  convention  of  1907-08,  twenty-nine  committees ; the  Ohio 
convention  of  1912,  twenty-five;  the  Massachusetts  convention  of  1917, 
twenty-four.  The  Illinois  convention  of  1869-70  had  thirty-nine  com- 
mittees, a number  much  larger  than  was  needed.  Of  these  committees 
six  made  no  report  whatever  to  the  convention,  and  because  of  the 
lack  of  care  in  planning  the  scope  of  committees,  several  committees 
were  considering  and  reporting  upon  the  same  subjects.  A much  more 
satisfactory  distribution  of  the  work  could  have  been  made  in  the 
Illinois  convention  of  1869-70  had  there  been  fewer  committees ; for 
example,  there  were  separate  committees  on  canals  and  canal  lands, 
internal  improvements,  roads  and  internal  navigation,  which  might 
well  have  been  consolidated  into  one ; and  in  several  cases  there  were 
two  separate  committees  to  deal  with  closely  related  subjects,  both  of 
which  were  relatively  unimportant  from  a constitutional  standpoint. 
Upon  the  proper  organization  of  committees  and  a proper  distribution 
of  work  among  them  depends  to  a large  extent  the  success  of  a con- 
vention. 

The  size  of  committees  must,  of  course,  vary.  The  number  and 
size  should  be  such  that  each  member  may  have  some  committee  ser- 
vice, but  each  member  should  not  be  burdened  with  service  upon  four 
committees,  as  in  Illinois  in  1869-70.  Somewhat  the  same  situation 
existed  in  the  Ohio  convention  of  1912.  The  size  of  a committee  must 
depend  somewhat  upon  the  function  which  it  is  to  perform.  For  a 
convention  there  may  be  said  to  be  three  types  of  committees;  (1) 
those  on  the  formal  business  of  the  convention,  such  as  committees 
on  rules,  printing,  etc.;  (2)  those  whose  functions  are  largely  techni- 
cal, such  as  a committee  on  phraseology  and  style;  (3)  those  whose 
function  would  be  largely  that  of  obtaining  agreement  upon  broad 
questions  of  principle,  such  as  might  be  to  a large  extent  a committee 
dealing  with  the  subject  of  municipal  home  rule.  Of  course,  most 
committees  will  have  duties  of  all  three  types,  but  some  difference  in 
size  is  justified.  Committees  of  the  first  type  should  naturally  be 
small ; those  of  the  second  type  may  well  be  larger,  but  even  for  the 
third  type  committees  of  more  than  fifteen  members  are  apt  to  work 
ineffectively.  The  average  size  of  committees  in  the  Ohio  convention 
of  1912  was  seventeen,  and  a number  of  committees  had  20  or  21 
members.  Because  of  this  the  committee  work  was  less  effective  than 
it  might  have  been.  There  is  a tendency  to  organize  either  a legislative 
body  or  a convention  into  too  many  committees  and  into  committees 


26 


each  of  which  is  too  large  for  effective  work.  In  the  New  York  Con- 
vention of  1915  a large  number  of  the  committees  had  seventeen 
members  each,  and  in  the  Massachusetts  Convention  of  1917  most  of 
the  committees  were  composed  of  fifteen  members. 

Committees  are,  of  course,  organs  of  the  convention,  appointed 
for  the  puprose  of  maturing  matters  for  consideration  by  that  body. 
A committee  should,  therefore,  be  subject  at  all  times  to  control  by  a 
majority  of  the  convention,  and  should  have  no  power  ( by  failing  to 
report  upon  any  matter)  to  prevent  its  consideration  by  the  conven- 
tion. Abuse  of  committee  power  is  not  apt  to  occur  in  a convention, 
but  the  rules  should  be  so  framed  as  to  prevent  the  possibility  of  such 
abuse.  In  the  New  York  Convention  oi  1894  there  was  the  following 
rule : “Whenever  a committee  shall  have  acted  adversely  on  any 

proposed  amendment  to  the  constitution  such  committee  need  not  re- 
port such  adverse  determination,  unless  requested  in  writing  by  the 
member  introducing  such  amendment  so  to  do  and  it  was  determined 
(by  the  committee)  in  the  affirmative. ” However,  in  this  convention 
any  matter  might  be  recalled  from  a committee  by  the  majority  action 
of  the  convention;  and  a similar  rule  for  recalling  matters  from  a 
committee  existed  in  the  Michigan  Convention  of  1907-08,  the  New 
York  Convention  of  1915,  and  the  Alabama  Convention  of  1901-02. 
In  the  Michigan  Convention  of  1907-08,  there  was  a rule  that  “all 
standing  committees  before  reporting  adversely  on  any  proposal,  shall 
notify  the  member  presenting  such  proposal  when  and  where  he  may 
meet  such  committee  to  explain  the  same.” 

In  the  Ohio  Convention  of  1912,  there  was  a rule  which  read  as 
follows : “Any  time  after  two  weeks  from  the  time  when  the  conven- 

tion shall  have  committed  any  proposal  to  any  committee,  a report 
thereon  in  the  meantime  not  having  been  made  by  said  committee, 
the  author  of  such  proposal  may,  when  no  other  business  is  pending 
and  in  any  order  of  business,  demand  that  such  proposal  be  reported 
back  to  the  convention ; and  -such  demand  when  so  made  shall  be 
deemed  the  action  of  the  convention,  and  the  proposal  is  at  once  before 
the  convention  subject  to  all  rules  of  procedure  as  before.  Provided, 
however,  that  this  shall  not  apply  to  a member  whose  proposal  has 
passed  its  second  reading  and  has  been  referred  (to  the  committee  on 
arrangement  and  phraseology).  The  convention  by  a majority  vote 
may  demand  the  forthwith  report  of  any  proposal  that  has  been  com- 
mitted to  any  committee.” 

In  the  Arizona  Convention  of  1910  committees  were  required  to 
report  upon  each  proposal  referred  to  them  within  eight  days  after  the 
day  of  reference,  unless  otherwise  ordered  by  the  convention.  In 
Massachusetts  in  1917  all  proposals  of  amendment  were  required  to 
be  submitted  to  the  convention  by  June  25,  and  all  committees  were 
required  to  file  their  reports  upon  such  proposals  of  amendment  by 
July  16.  The  New  York  convention  of  1915  regarded  it  as  sufficient 
to  require  that  “the  several  committees  shall  consider  and  report  with- 
out unnecessary  delay  upon  the  respective  matters  referred  to  them 
by  the  convention.”  The  Arizona  rule  is  unwise.  Upon  any  important 
matter  a number  of  proposals  will  be  introduced  and  referred  to  a 


27 


committee.  The  committee  in  framing  a proposed  constitutional  pro- 
vision upon  the  matter  should  consider  all  the  proposals,  and  should 
report  upon  the  matter  as  a unit.  Any  rule  requiring  a report  upon 
each  separate  proposal  within  a limited  time  would  greatly  handicap 
the  work  of  committees. 

The  form  of  committee  proceedings  and  of  committee  reports 
ought  to  be  left  to  the  committees  themselves.  It  has  been  urged  in 
some  conventions  that  committees  should  confine  their  reports  to 
recommended  clauses  or  articles  without  giving  reasons  for  such 
recommendations.  Where  a recommendation  relates  to  a change  in 
existing  constitutional  provisions  explanation  is,  however,  usually 
desirable  and  should  be  given.  A committee  report  should  in  all  cases 
indicate  what  changes  in  an  existing  constitutional  provision  are  being 
recommended. 

Committees  have  ordinarily  been  appointed  by  the  president  of 
the  convention,  and  this  is  the  more  satisfactory  arrangement.  As  has 
been  suggested,  partisanship  should  be  absent  from  the  deliberations 
of  a convention,  but  this,  unfortunately,  is  not  always  the  case,  and 
where  the  person  chosen  as  president  is  elected  because  of  distinct 
partisanship  the  power  of  appointment  is  apt  to  be  abused.  In  the 
New  Mexico  convention  of  1910  the  person  chosen  as  president  was 
a railroad  attorney  and  apparently  because  of  the  fear  that  the  con- 
vention might  be  charged  with  being  under  the  control  of  corporations 
the  appointment  of  committees  was  vested  in  a committee  chosen  by 
the  convention  itself. 


Introduction  of  proposals:  The  committees  must  do  the 
detailed  work  of  the  convention  and  each  committee  should  have 
before  it  as  soon  as  possible  all  of  the  proposals  relating  to  the  subject 
which  it  is  to  consider.  In  order  to  accomplish  this  purpose  conven- 
tions have  often  definitely  agreed  that  after  a certain  date  no  pro- 
posals should  be  entertained  unless  presented  by  one  of  the  standing 
committees.  In  the  New  York  convention  of  1915  (which  met  on 
April  6)  no  proposed  constitutional  amendment  could  be  introduced 
after  June  11,  except  on  the  report  or  recommendation  of  a standing 
or  select  committee.  The  Massachusetts  convention  of  1917  met  on 
June  6,  and  proposals  of  amendments  were  required  to  be  presented 
by  the  close  of  the  day  of  June  25.  In  the  Ohio  convention  of  1912  the 
rules  made  the  introduction  of  proposals  more  difficult  after  the  first 
two  weeks  of  the  session.  Members  will  usually  present  their  pro- 
posals as  soon  as  possible,  because  early  introduction  may  make  a pro- 
posal more  influential,  but  some  rule  is  necessary  in  order  that  com- 
mittees shall  have  all  proposals  before  them  in  the  early  days  of  a con- 
vention. 

Many  convention  rules  have  very  properly  prescribed  the  form 
in  which  proposals  shall  be  introduced,  requiring  that  all  proposals 
be  in  writing,  contain  but  one  subject  and  have  titles.  In  the  Ohio 
convention  of  1912  all  proposals  were  required  to  be  presented  in 
duplicate. 


Committee  of  the  whole:  With  respect  to  the  general  con- 

duct of  a convention's  work  the  committee  of  the  whole  has  been 
found  a convenient  instrument,  in  the  Alabama  convention  of  1901, 
where  this  committee  was  not  employed,  there  was  much  wrangling 
over  rules  and  points  of  order,  in  the  Virginia  convention  of  1901-02 
objection  was  made  to  the  committee  of  the  whole  on  the  ground  that 
its  use  would  lead  to  repetition  of  debate  upon  each  subject,  an  objec- 
tion which  finds  support  in  the  Kentucky  convention  of  1890-91,  but 
this  objection  is  more  than  counterbalanced  by  the  simpler  method  of 
procedure  in  committee  of  the  whole.  A committee  of  the  whole, 
completely  unrestricted,  is  probably  undesirable,  but  a simpler  pro- 
cedure may  be  had  in  committee  of  the  whole,  and  the  convention  may 
at  the  same  time  adopt  rules  which  place  some  limitation  upon  acting 
in  committee  of  the  whole.  The  rules  of  the  Michigan  convention  of 
1907-08  seem  fairly  satisfactory  for  this  purpose.  “The  rules  of  the 
convention  shall  be  observed  in  committee  of  the  whole,  so  far. as  they 
are  applicable,  except  that  the  vote  of  a majority  of  said  committee 
shall  govern  its  action ; it  cannot  refer  a matter  to  any  other  com- 
mittee; it  cannot  adjourn;  the  previous  question  shall  not  be  enforced; 
the  yeas  and  nays  shall  not  be  called ; a motion  to  indefinitely  postpone 
shall  not  be  in  order ; a member  may  speak  more  than  once.  A journal 
of  the  proceedings  in  the  committee  of  the  whole  shall  be  kept  as  in 
convention.”  A similar  rule  existed  in  the  Ohio  convention  of  1912. 
The  important  portion  of  this  rule  is  that  requiring  that  a journal  be 
kept  of  proceedings  in  the  committee  of  the  whole.  Stenographic 
reports  should  also  be  made  of  debates  in  committee  of  the  whole,  as 
well  as  of  debates  in  the  convention. 


Limitation  of  debate : Most  conventions  have  begun  their 

work  practically  without  limitation  of  debate^  although  the  previous 
question  has  been  permitted.  In  the  Michigan  convention  of  1907-08 
any  member  could  move  the  previous  question  but  must  be  seconded 
by  ten  members  and  it- could  be  ordered  by  a majority  of  those  present 
and  voting.  In  the  Ohio  convention  of  1912  a two-thirds  vote  was 
necessary  to  sustain  the  previous  question.  In  the  New  York  con- 
vention of  1894  several  rules  limited  debate.  The  previous  question 
could  be  carried  by  a majority  vote,  and  the  committee  on  rules  could, 
when  ordered  by  the  convention,  report  a rule  limiting  debate  upon  a 
particular  question. 

Obstructive  tactics  seem  to  have  been  resorted  to  by  the  minority 
in  the  New  York  convention  of  1894  and  a rule  was  finally  brought  in 
and  adopted  denyihg  the  ayes  and  noes  on  formal  and  dilatory 
motions.  The  Michigan  convention  somewhat  late  in  its  session  limited 
the  length  of  speeches  in  committee  of  the  whole,  and  the  Illinois 
convention  of  1869-70  found  it  necessary  to  adopt  a similar  limitation. 
In  the  South  Carolina  convention  of  1895  the  expedient  was  adopted 
late  in  the  session  of  appointing  a steering  committee,  to  apportion  the 
time  and  direct  the  work  of  the  convention. 


29 


Convention  debate  should  be  free  enough  to  allow  adequate  con- 
sideration of  every  proposal,  but  experience  has  shown  that  if  a con- 
vention starts  its  deliberations  without  any  limitations  upon  debate  a 
large  portion  of  the  time  is  likely  to  be  taken  up  with  excessive  debate 
upon  the  earlier  questions  presented,  so  that  the  later  work  of  the  con- 
vention must  be  unduly  rushed.  It  is  wise  for  a convention  to  impose 
a moderate  limitation  upon  debate  at  the  outset,  and  such  a limitation 
should  exist  not  only  for  the  convention  itself  but  also  for  action  in 
committee  of  the  whole. 

In  the  Michigan  convention  of  1907-08  the  first  committee 
appointed  was  one  on  permanent  organization  and  order  of  business. 
This  committee  was  afterward  made  permanent.  It  reported  the  plan 
of  committee  organization  and  made  other  reports  during  the  session 
of  the  convention.  One  of  its  recommendations,  which  was  adopted, 
provided  for  a weekly  meeting  of  the  chairmen  of  committees,  to  be 
presided  over  by  the  president  of  the  convention,  “at  which  meeting  the 
chairmen  of  the  several  committees  shall  report  progress  and  consider 
such  other  matters  as  may  be  of  interest  in  advancing  the  work  of 
the  convention.”  Such  a plan,  if  properly  carried  out,  should  do  much 
to  unify  the  work  of  a convention.  In  any  organization  of  a con- 
vention there  should  be  some  central  organization  which  will  effect- 
ively direct  the  work  and  prevent  loss  of  time.  Much  of  the  usual 
loss  of  time  may  be  avoided  by  careful  consideration  in  the  first 
instance  of  the  rules  under  which  a convention  is  to  proceed. 


Editorial  committee : A committee  on  phraseology  and  style 

is  perhaps  the  most  important  single  committee  of  a convention.  Prac- 
tically all  conventions  have  had  a committee  of  this  type  but 
the  name  of  the  committee  has  varied.  In  the  Federal  convention  of 
1787  there  was  a committee  on  style,  and  in  the  Illinois  convention 
of  1869-70  there  was  a committee  on  revision  and  adjustment.  A 
recess  has  often  been  taken  by  the  convention  so  as  to  allow  sufficient 
time  for  the  work  of  this  committee.  In  the  greater  number  of  con- 
ventions the  committee  on  phraseology  and  style  has  been  merely  a 
proof-reading  committee,  and  in  some  cases  fear  has  been  expressed 
lest  this  committee  change  the  sense  of  proposals  adopted  by  the  con- 
vention. However,  a committee  is  needed  to  do  something  more  than 
the  mere  editorial  work  of  removing  inconsistencies  in  sense  and 
language.  The  work  of  a convention  is  necessarily  made  up  from 
reports  of  a number  of  committees  and  the  proposals  presented  will 
naturally  lack  consistency  in  draftsmanship.  The  committee  on  phrase- 
ology and  style  should  serve  in  large  part  as  a central  drafting  organ 
to  give  unity  to  the  work  of  a convention.  ^ 

In  the  Michigan  convention  of  1907-08  effective  use  was  made  of 
a central  drafting  committee.  Proposals  introduced  by  members  were 
read  and  referred  to  the  appropriate  committee ; when  reported  by 
the  committee  they  were  taken  up  in  committee  of  the  whole,  and  when 
reported  upon  by  the  committee  of  the  whole,  were  referred  to  a com- 


mittee  on  arrangement  and  phraseology.  The  proposal  when  reported 
upon  by  this  committee,  was  put  upon  its  second  reading  and  after 
second  reading  was  voted  upon.  If  adopted,  it  was  again  referred  to 
the  committee  on  arrangement  and  phraseology,  which,  after  all  pro- 
posed amendments  had  been  considered,  reported  the  complete  revision 
as  agreed  upon,  the  convention  taking  a twelve-day  recess  in  order 
to  give  time  for  this  work.  This  revision  was  then  considered  by 
sections  in  the  committee  of  the  whole,  was  reported  to  the  convention 
and  was  then  , put  upon  the  third  reading  and  voted  upon  by  articles 
and  as  a whole.  This  procedure  gave  four  different  opportunities 
for  the  discussion  and  amendment  of  every  proposal.  But  more  im- 
portant, it  gave  the  committee  on  arrangement  and  phraseology  great 
influence  by  allowing  it  an  opportunity  to  revise  the  language  of  each 
proposal  after  it  was  agreed  to  in  committee  of  the  whole  and  before 
it  was  definitely  adopted ; proposals  so  revised  came  again  to  this  com- 
mittee to  be  consolidated  into  a complete  constitution.  As  a result 
of  this  care  the  Michigan  constitution  of  1908  is  the  best  drafted  of 
recent  state  constitutions. 

A somewhat  similar  use  of  its  committee  on  phraseology  and  style 
was  made  by  the  Ohio  convention  of  1912.  The  consideration  upon 
second  reading  was  primarily  upon  the  substance,  and  thereafter  the 
proposal  went  to  a committee  on  arrangement  and  phraseology  and 
after  the  report  of  this  committee  it  was  presented  for  final  action. 
The  Ohio  committee  presented  its  reports  in  such  a manner  that  each 
member  of  the  convention  had  before  him  the  original  form  of  pro- 
posal adopted  by  the  convention,  the  changes  recommended  by  the 
committee,  and  the  proposal  as  it  would  read  if  such  recommendations 
were  adopted. 

In  the  Illinois  convention  of  1869-70  the  committee  on  revision 
and  adjustment  was  largely  limited  to  detailed  changes  in  language. 
The  New  York  convention  of  1915  and  the  Massachusetts  convention 
of  1917-19  are  of  interest  as  presenting  a fairly  effective  use  of  a 
similar  committee.  Of  recent  conventions  those  of  Michigan 
(1907-08).  Ohio  (1912),  and  New  York  (1915),  had  the  most  satis- 
factory rules. 

The  rules  of  the  New  York  convention  of  1894  were  based  too 
much  upon  partisan  considerations.  The  rules  of  the  Massachusetts 
convention  of  1917-19  are  open  to  objection  in  that  they  allow  abso- 
lute freedom  of  debate  in  committee  of  the  whole,  and  tend  to  permit 
too  great  a degree  of  debate  upon  the  measures  first  presented  to  the 
convention. 


31 


V.  GENERAL  OUTLINE  OF  STATE  CONSTITUTIONAL 
DEVELOPMENTS  SINCE  1776. 


In  this  and  other  states  there  are  two  methods  of  constitutional 
change.  One  is  through  the  assembling  of  a convention  and  the  other 
is  through  the  proposal  of  specific  amendments.  The  proposal  of 
specific  amendments  may  be  made  in  a number  of  states  not  only  by 
the  legislative  bodies  but  also  by  initiative  petition.  New  Hampshire 
is  the  only  state  which  does  not  provide  for  the  proposal  of  amend- 
ments through  legislative  action.  In  New  Hampshire  the  only  method 
of  constitutional  change  is  that  by  a constitutional  convention  and 
in  that  state  the  question  of  holding  a constitutional  convention  is 
submitted  to  the  voters  once  each  seven  years. 

With  increasing  detail  in  the  state  constitutions,  the  constitu- 
tional convention  and  the  processes  of  specific  constitutional  amend- 
ment have  become  important  legislative  processes,  not  only  for  matters 
of  fundamental  importance  but  also  for  matters  not  properly  funda- 
mental in  character.  The  increasing  bulk  of  state  constitutions  and 
the  consequent  necessity  for  frequent  alteration,  have  brought  with 
them  easier  processes  of  constitutional  change,  and  in  a number  of 
states  at  the  present  time  the  process  of  constitutional  change  is  not 
more  difficult  than  that  of  statutory  change. 

In  this  discussion  an  efifort  will  be  made  to  sum  up  first  of  all 
the  general  lines  of  state  constitutional  development  in  this  country 
since  1776  and  then  to  outline  more  in  detail  the  specific  changes 
which  have  taken  place  since  1900.  The  main  lines  of  constitutional 
development  from  1776  to  the  present  time  may  be  summed  up  under 
the  following  headings : 


Development  of  the  departments  of  government.  In  the  first 
state  constitutions  the  legislatures  occupied  a predominant  position. 
The  struggles  of  the  colonial  period  between  a popularly  elected 
assembly  on  the  one  hand,  and  the  governor  (who  controlled  the 
council  as  an  upper  legislative  body  and  the  courts)  on  the  other  hand, 
naturally  led  the  framers  of  new  constitutions  for  independent  states, 
to  distrust  the  executive  branch  of  the  government  and  to  concentrate 
almost  complete  powers  in  the  hands  of  the  legislative  bodies.  The 
first  sixty  years  of  constitutional  development  (1776-1836)  were 
largely  a period  during  which  there  was  a readjustment. of  the  equilib- 
rium as  among  the  three  departments  of  government. 

In  most  of  the  earlier  state  constitutions  provision  was  made  foi 
the  election  of  the  governor  by  the  legislature,  and  executive  councils 


32 


dominated  by  the  legislatures  further  restricted  the  executive  power 
in  a number  of  the  states.  The  governor  possessed  little  power  of 
appointment,  for  most  important  offices  were  filled  by  the  legislature, 
and  under  the  first  state  constitutions  his  control  over  legislation  was 
slight. 

But  a distrust  of  the  legislature  soon  arose,  in  part  because  of 
the  large  powers  which  it  had,  and  in  part  because  it  exercised  these 
powers  unwisely.  The  New  York  constitution  of  1777  made  the  gov- 
ernor a popularly  elected  officer,  as  did  the  Massachusetts  constitution 
of  1780,  and  the  New  Hampshire  constitution  of  1784,  and 
practically  all  state  constitutions  after  this  period  adopted 
the  policy  of  popular  election,  the  Virginia  constitution  of  1830  be- 
ing a notable  exception  to  this  statement.  A lengthening  term  of 
office  at  the  same  time  gave  the  governor  greater  opportunity  to 
exercise  his  powers,  as  did  also  the  discarding  by  most  states  of 
the  cumbersome  and  ineffective  executive  council.  With 
respect  to  the  important  executive  offices  of  the  state  the  power  of 
the  governor  in  most  cases  was. not  greatly  increased  but  the  power 
of  the  legislatures  and  their  control  over  the  executive  was  reduced 
by  making  such  officers  elective  directly  by  the  people — a movement 
whose  influence  may  be  traced  by  a comparison  of  the  Michigan  con- 
stitutions of  1835  and  1850.  By  the  New  York  constitution  of  1777 
the  executive  appointing  power  was  large  but  was  confined  largely 
to  a council  of  appointment  whose  members  were  during  much  of  the 
time  out  of  harmony  with  the  governor.  This  council  of  appointment 
disappeared  in  New  York  in  1821,  and  the  governor’s  appointing 
i power  has  gradually  tended  to  increase  throughout  the  United  States 
— by  virtue  of  the  fact  that  the  state  governments  have  steadily  be- 
come more  complex  and  assumed  new  functions,  thus  increasing  the 
number  of  appointive  officers. 

There  has  also  been  a steady  increase  in  the  governor’s  power 
over  legislation.  Of  the  earlier  state  constitutions,  that  of  South  Caro- 
lina (1776)  vested  an  absolute  veto  in  the  president  of  the  state,  but 
this  power  was  only  once  sought  to  be  exercised  and  was  withdrawn 
by  the  constitution  of  1778..  The  New  York  constitution  of  1777  pro- 
vided a council  of  revision  of  which  the  governor  was  a member,  which 
should  have  a suspensory  veto,  and  a plan  somewhat  similar  to  that 
of  New  York  existed  in  Illinois  from  1818  to  1848.  The  Massachu- 
setts constitution  of  1780  was  the  first  to  give  the  governor  acting 
alone  a suspensory  veto  over  legislation  which  might  be  overcome  by 
action  of  an  extraordinary  majority  (%)  in  the  legislative  houses. 
The  New  Hampshire  constitution  of  1784  was  largely  copied  from  that 
of  Massachusetts,  but  the  provisions  for  an  executive  veto  of  legisla- 
tion was  rejected  by  New  Hampshire.  The  provision  of  the  federal 
constitution  of  1787  with  respect  to  the  presidential  veto  has  been 
followed  in  principle  by  most  of  the  subsequent  state  constitutions. 
Georgia  (1789),  New  Hampshire  (1792)  and  Kentucky  (1792)  fol- 
lowed the  federal  precedent  by  giving  their  governors  a veto  power 
New  York  abolished  its  council  of  revision  in  1821  and  conferred 
this  power  upon  its  governor  acting  alone  As  the  states  adopted  new 


33 


constitutions  it  became  usual  for  the  veto  power  to  be  conferred,  and 
although  several  states  have  only  recently  conferred  upon  their  gov- 
ernors a negative  over  legislation,  .North  Carolina  today  is  the  only 
state  whose  governor  has  no  veto  power. 

the  governors  veto  power  over  legislative  action  has  been  so 
extended  that  in  more  than  two-thirds  ot  the  states  he  now  also  has 
power  to  veto  separate  items  in  appropriation  bills ; the  constitutions 
of  Washington  and  South  Carolina  in  addition  confer  upon  the  gov- 
ernor power  to  veto  any  section  or  sections  of  a bill  presented  to  him, 
and  to  approve  other  portions  of  the  bill  so  presented. 

The  executive  department  has  thus  in  its  organization  and  powers 
become  stronger,  and  its  gain  in  power  has  been  largely  at  the  expense 
of  the  legislature.  Somewhat  the  same  development  has  taken  place 
with  respect  to  the  judicial  department.  In  most  of  the  first  constitu- 
tions the  judges  were  chosen  by  the  legislative  bodies,  although  in 
several  states  there  was  executive  appointment,  subject  to  confirmation 
by  the  executive  council  or  upper  branch  of  the  legislature.  The  power 
of  appointment  was  in  most  cases  gradually  taken  from  the  legisla- 
ture; this  power  in  some  states  was  at  first  conferred  upon  the  gov- 
ernor, but  the  movement  for  popular  election,  which  gained  force 
from  1830  to  1850,  has  extended  popular  choice  to  judicial  as  well  as 
executive  officers.  The  legislative  power  of  impeachment  has  con- 
tinued in  many  states,  and  to  it  has  been  added  in  a number  of  cases 
an  executive  power  of  removal  upon  address  by  the  legislative  bodies. 

But  the  most  important  power  acquired  by  the  judicial  depart- 
ent  in  this  country  has  been  that  of  declaring  invalid  laws  which  in 
the  opinion  of  the  judges  conflict  with  the  constitution.  The  exercise 
of  this  power  was  not  contemplated  by  the  earlier  state  constitutions, 
but  the  courts  which  in  our  earlier  state  governments  really  occupied 
a subordinate  position,  were  able  to  assume  such  power,  largely 
because  of  the  early  developed  distrust  of  the  legislatures  and  of  the 
feeling  that  some  check  upon  legislative  power  was  needed.  The 
judicial  power  over  legislation,  once  established,  has  steadily  grown, 
in  part  by  the  assumption  by  the  courts  on  their  own  motion  of  more 
extensive  and  detailed  supervision  over  legislation,  and  in  part  also 
because  the  state  constitutions  have  steadily  added  an  increasing  num- 
ber of  limitations  upon  legislative  action,  such  limitations  being  sub- 
ject to  judicial  enforcement,  under  the  theory  of  judicial  control  as 
to  the  constitutionality  of  legislation. 


Limitation  upon  legislative  power.  Reference  has  already  been 
made  to  the  fact  that  constitutional  legislation  has  steadily  increased 
in  the  states  at  the  expense  of  ordinary  legislation — that  through  re- 
vision or  amendment  much  matter  properly  of  a statutory  character 
has  been  introduced  into  the  state  constitutions,  thus  limiting  the  power 
of  the  regular  legislative  bodies.  In  addition  legislative  power  is  strictly 
limited  by  a series  of  specific  prohibitions  which  have  from  time  to 
time  been  introduced  into  the  constitutions. 


34 


The  first  series  of  important  limitations  may  be  said  to  have  re- 
sulted from  the  state  internal  improvement  movement  which  gained 
force  after  1830.  The  people  of  many  states  were  carried  away  by 
a wild  frenzy  for  internal  improvements  to  be  constructed  at  state 
expense,  and  plans  often  immature  and  impracticable  were  forced 
upon  state  legislatures ; failure  was  almost  sure  to  result.  As  a result 
of  unwise  plans  adopted  by  the  states  during  the  period  from  1830  to 
1850  practically  all  of  our  constitutions  now  have  strict  limitations 
upon  state  indebtedness.  “As  the  people  had  driven  their  representa- 
tives to  enter  upon  internal  improvements  without  caution,  so  when 
taxes  began  to  press,  they  censured  them  without  justice  and  disowned 
the  policy.” 

The  states  having  excluded  themselves  from  the  field  of  internal 
improvements,  their  place  was  taken  by  private  corporations.  These 
private  corporations  in  their  turn  appealed  for  financial  aid  to  the 
minor  civil  divisions  of  the  state,  upon  whom  no  constitutional  limita- 
tations  had  yet  been  placed,  and  which  might  aid  railroads  and  other 
enterprises  either  under  their  general  powers  or  under  powers  con- 
ferred for  that  purpose  by  the  legislatures.  The  legislatures  here 
again  yielding  to  popular  pressure  permitted  the  civil  divisions  of  their 
states  to  loan  their  credit  heavily  to  projected  railways  and  other 
similar  enterprises.  Here,  too,  unwise  management  brought  financial 
disaster,  and  as  a result  constitutional  limitations  were  adopted  by 
which  municipalities  and  other  local  divisions  of  the  states  are  for- 
bidden to  loan  their  credit  in  aid  of  such  enterprises  or  to  incur  in- 
debtedness beyond  certain  fixed  limits. 

In  a somewhat  similar  manner  the  early  banking  experiences  of 
the  states — and  especially  the  abuses  arising  out  of  state  participation 
in  banking  and  out  of  legislative  grant  of  bank  charters — produced  a 
series  of  constitutional  limitations  upon  the  passage  of  state  banking 
laws.  In  the  case  just  referred  to  the  legislatures  acted  unwisely,  but 
they  acted  under  pressure  of  the  people,  and  cannot  be  held  entirely 
responsible  for  the  abuses  which  resulted.  The  people  insisted  upon 
legislative  policies  which  resulted  in  disaster  and  then  after  the  injury 
had  been  done  they  imposed  strict  limitations  upon  their  legislatures. 

In  many  matters,  limitations  have  been  imposed  upon  legislatures 
as  a result  not  so  much  of  legislative  incompetence  or  corruption  as  of 
actions  resulting  from  popular  pressure.  But  other  classes  of  limita- 
tions have  been  the  direct  result  of  abuses  for  which  the  legislatures 
alone  were  primarily  responsible — as  with  respect  to  favoritism  in 
granting  charters  to  private  companies,  the  passage  of  local  and  special 
legislation,  etc.  And  on  account  of  abuse  of  power  by  legislative 
bodies  we  now  have  a series  of  strict  limitations  upon  local  and  special 
legislation  and  upon  the  methods  of  legislative  action. 

These  limitations,  which  have  been  steadily  growing  in  number, 
have  decreased  the  power  and  influence  of  legislative  bodies.  And 
the  popular  distrust  of  legislatures,  fostered  in  part  by  measures  en- 
forced by  popular  sentiment,  and  in  part  also  by  the  incompetence 
of  the  legislatures  themselves,  has  caused  the  adoption  of  constitu- 


35 


tional  provisions  limiting  the  terms  of  legislative  sessions,  and  pro- 
viding that  such  sessions  should  be  held  biennially  (and  in  Alabama 
quadrennially)  rather  than  annually  as  under  the  earlier  constitutions. 


Popular  share  in  legislation.  During  the  past  twenty  years 
there  has  been  a pronounced  tendency  to  reduce  legislative  power  still 
further  through  the  introduction  of  the  initiative  and  referendum. 

The  introduction  of  the  initiative  and  referendum  involves  a 
greatly  increased  popular  share  in  the  legislation  of  the  States,  but  this 
is  only  one  step  in  a movement  toward  greater  popular  participation  in 
government  which  has  been  going  on  since  the  establishment  of  inde- 
pendent states.  The  American  Revolution  was  in  its  early  stages  a 
democratic  movement,  and  in  several  states  led  to  an  extension  of 
the  suffrage  and  to  the  reduction  of  property  qualifications  for  the 
holding  of  offices,  but  control  of  our  first  state  governments  was  con- 
fined in  great  part  to  the  propertied  classes.  The  following  steps 
may  be  pointed  out  as  ones  tending  toward  greater  popular  participa- 
tion in  government:  (1)  The  extension  of  suffrage  and  abolition  of 

property  qualifications  for  voting — a movement,  which  gained  force 
after  1800  and  which  became  triumphant  during  the  first  three  de- 
cades of  the  nineteenth  century,  although  Virginia  held  out  until  1850. 
(2)  The  somewhat  similar  movement  for  the  abolition  of  property 
qualifications  for  office,  which  covered  the  same  period.  (3)  The 
movement  which  led  to  the  selection  of  the  more  important  state  and 
local  officers  by  popular  vote,  as  a substitute  for  their  appointment 
by  the  legislature  or  by  the  executive.  This  movement  has  been 
referred  to  above  in  connection  with  the  choice  of  executive  and 
judicial  officers.  This  development  took  place  in  large  part  during  the 
second  quarter  of  the  nineteenth  century.  (4)  The  movement  for 
municipal  home  rule — for  the  framing  of  charters  by  cities  or  local 
divisions  themselves — a movement  which  began  in  Missouri  in  1875 
and  which  has  spread  to  a number  of  other  states  since  that  time.  This 
movement  involves  a diminution  of  state  legislative  control  over  cities. 

(5)  The  movement  for  the  popular  recall  of  state  and  local  officers. 

(6)  Woman’s  suffrage. 


3G 


VI.  STATE  CONSTITUTIONAL  DEVELOPMENTS 
SINCE  1900. 


The  period  since  1900  has  been  an  active  one  in  the  field  of  state 
constitution  making.  Attention  has  already  been  called  to  the  fact 
that  changes  in  the  texts  of  state  constitutions  take  place  in  two  ways : 
(1)  through  the  proposal  of  specific  amendments  either  by  the  legis- 
latures or  by  initiative  petition  and  (2)  through  the  calling  of  consti- 
tutional conventions. 

Since  1900  new  constitutions  have  been  adopted  in  Alabama 
(1901),  Virginia  (1902),  Oklahoma  (1907),  Michigan  (1908),  Ari- 
zona and  New  Mexico  (1911)  and  Louisiana  (1913).  All  of  these 
constitutions  were  proposed  by  constitutional  conventions,  although 
attention  should  be  called  to  the  fact  that  the  Louisiana  constitution 
of  1913  is  primarily  a mere  re-editing  of  the  constitution  of  1898.1 

Proposed  constitutions  submitted  by  constitutional  conventions 
were  rejected  by  Connecticut  (1902),  New  York  (1915),  and 
Arkansas  (1918).  Proposed  constitutions  were  drafted  by  legislative 
bodies  in  Indiana  (1911)  and  in  Connecticut  (1907).  The  proposed 
Indiana  constitution  was  never  submitted,  its  submission  being  en- 
joined by  judicial  action  ;2  and  the  proposed  Connecticut  constitution  of 
1907  was  rejected.  Constitutional  conventions  in  Ohio  (1912),  Massa- 
chusetts (1917-19),  and  New  Hampshire  (1902,  1912)  submitted  pro- 
posals of  amendment  rather  than  complete  constitutions.  Constitu- 
tional conventions  will  assemble  in  New  Hampshire  and  Nebraska 
late  in  1919.  The  Illinois  constitutional  convention  will  meet  in 
January,  1920.  Constitutional  commissions  appointed  for  the  purpose 
of  recommending  constitutional  changes  are  now  at  work  in  Vermont 
and  Pennsylvania.  The  Massachusetts  constitutional  convention, 
which  assembled  in  1917,  held  sessions  also  in  1918  and  1919. 

By  the  proposal  of  individual  amendments  either  by  legislative 
bodies  or  through  popular  petition,  a great  deal  in  the  way  of  constitu- 


1 For  a further  discussion  of  the  work  of  recent  constitutional  conventions 

see  the  following-  articles:  McKinley.  A.  E.  Two  New  Southern  Constitutions. 

Political  Science  Quarterly,  XVIII,  480:  Sanborn.  J.  B.  The  Oklahoma  Consti- 
tution, American  Law  Review,  XLIT,  362;  Fairlie,  J.  A.  The  Constitution  of 
Oklahoma,  Michig-an  Law  Review,  VT,  105;  Fairlie,  ,T.  A.  The  Michigan  Con- 
stitutional Convention,  Michigan  Law  Review,  VI,  533;  Updyke,  F.  A.  New 
Hampshire  Constitutional  Convention,  American  Political  Science  Review,  VTI. 
(1913)  133;  Benjamin,  Gilbert  G.  Attempted  Revision  of  the  State  Constitu- 
tion of  New  York.  American  Political  Science  Review.  X.  20  (1916);  Thomas, 
David  Y.  Constitution  Making  in  Arkansas,  American  Political  Science  Review, 
XIII,  87  (1919). 

2 Ellingham  v.  Dye,  178  Ind.  336  (1912).  The  question  of  holding  a consti- 
tutional convention  was  submitted  to  a popular  vote  in  Indiana  in  1914  and 
rejected.  The  legislature  then  provided  for  a convention  to  meet  without  a 
popular  vote  as  to  whether  one  should  be  called,  and  an  injunction  was  issued 
to  prevent  such  a convention,  Bennett  v.  Jackson,  186  Ind.  533  (1917), 


37 


tional  change  has  been  proposed  and  accomplished  since  1900.  Since 
1900,  1504  constitutional  amendments  have  been  proposed  in  the  48 
states,  of  which  904  have  been  adopted  and  600  rejected.  Of  this 
number  150  proposed  amendments  were  submitted  in  California,  134 
in  Louisiana,  88  in  Oregon,  52  in  Colorado  and  Georgia,  57  in  New 
York,  71  in  Ohio,  51  in  South  Dakota  and  50  in  Michigan.  Upon 
matters  relating  to  taxation  alone  257  proposed  amendments  have  been 
submitted  in  the  several  states  between  1900  and  1918,  of  which  142 
were  adopted. 

Certainly  not  more  than  one  out  of  four  of  the  proposed  amend- 
ments in  the  several  states  has  related  to  any  matter  of  fundamental 
importance.  The  greater  number  of  the  amendments  have  related  to 
matters  of  no  great  importance,  and  probably  half  of  them  to  matters 
which  would  not  have  been  regarded  as  important  even  if  they  had 
been  the  subjects  of  legislative  enactments.  For  example,  there  were 
constitutional  amendments  in  North  Dakota  in  1904  and  1914,  chang- 
ing the  names  of  state  charitable  institutions,  and  in  the  same  state  in 
1904  and  1916  establishing  institutions  for  the  feeble-minded  and  for 
the  insane.  In  South  Carolina  a group  of  communities  desires  each 
two  years  to  be  relieved  from  the  constitutional  debt  limits,  and  there 
seems  to  be  no  difficulty  about  obtaining  a legislative  proposal  of 
amendment  and  a popular  approval  of  an  amendment  for  this  pur- 
pose. The  constitutional  debt  limit  in  South  Carolina  has  become  bv 
this  means  an  adjustable  one  for  the  communities  which  desire  relief 
from  it  through  action  in  each  biennial  period.  The  proposal  of  amend- 
ments bv  the  legislative  process  necessarily  tends  to  become  greater 
in  each  biennial  period,  for  each  set  of  proposed  amendments  in  anv 
state  is  adding  more  of  detail  to  the  constitution  and  this  detail  must 
be  changed  at  frequent  intervals. 

The  chief  lines  of  development  in  state  constitutions  since  1900 
are  set  forth  below : 


Popular  participation  in  government.  Suffrage  qualifications 
have  received  a great  deal  of  attention  during  this  period,  and  the 
matters  dealt  with  in  connection  with  suffrage  fall  into  several  dis- 
tinct-classes : fa)  Suffrage  restrictions  in  the  south,  primarilv  aimed 

at  Negro  suffrage ; (b)  The  withdrawal  of  the  right  to  vote  in  a 
number  of  states  from  non-citizens;  (c)  The  extension  of  woman’s 
suffrage. 

With  respect  to  suffrage  qualifications  aimed  primarily  at  the 
restriction  of  negro  suffrage  in  the  south,  there  were  changes  in  the 
revised  constitutions  of  Alabama  and  Virginia  in  1902  and  constitu- 
tional amendments  in  North  Carolina  fl900).  Georgia  (1908)  and 
Louisiana  (1912).  The  Louisiana  amendment  of  1912  merelv  sup- 
plemented the  provisions  with  resnect  to  suffrage  first  introduced  into 
the  Louisiana  constitution  in  1898.  Oklahoma  in  1910  adopter! 
restrictions  which  were  declared  unconstitutional  bv  the  United  States 
Supreme  Court  in  the  case  of  Guinn  v.  U.  S.  238  U.  S.  347, 


38 


With  respect  to  voting  by  non-citizens  Colorado  (1902)  changed 
its  constitution  so  as  to  make  citizenship  a prerequisite,  and  the  same 
action  was  taken  by  Wisconsin  in  1908,  Oregon  in  1914  and  Kansas 
in  1918. 

With  respect  to  woman’s  suffrage,  the  development  during  this 
period  has  been  an  active  one  although  in  a great  many  cases  proposed 
amendments  have  been  rejected.  In  Oregon  proposals  for  woman’s 
suffrage  were  rejected  in  1900,  1906,  1908  and  1910,  but  an  amend- 
ment for  this  purpose  was  finally  adopted  in  1912.  The  states  in 
which  constitutional  amendments  have  granted  full  woman’s  suffrage 
since  1900  are  Washington  (1910),  California  (1911),  Arizona 
(1911),  Kansas  and  Oregon  (1912),  Montana  and  Nevada  (1914), 
New  York  (1917),  Michigan,  Oklahoma  and  South  Dakota  (1918). 

The  constitutional  development  with  respect  to  woman’s  suffrage 
tells  only  a part  of  the  story  as  to  this  subject.  Broad  statutory  exten- 
sions of  woman’s  suffrage  have  taken  place  rapidly  since  the  Illinois 
legislation  upon  this  subject  in  1913,  and  in  Illinois,  North  Dakota, 
Tennessee  and  Nebraska  women  are  by  statute  permitted  to  vote  for 
presidential  electors  and  for  a number  of  other  officers.  In  Indiana, 
Iowa,  Maine,  Minnesota,  Missouri,  Ohio,  Rhode  Island  and  Mississippi 
women  are  allowed  now  to  vote  for  presidential  electors.  The  statu- 
tory development  in  the  matter  of  woman’s  suffrage  has  accomplished 
during  the  latter  part  of  the  period  here  under  discussion  very  nearly 
as  much  as  the  constitutional  development.  State  constitutional  and 
statutory  activities  are  likely  soon  to  be  supplemented  by  the  ratifica- 
tion of  the  Federal  woman’s  suffrage  amendment. 

Earlier  judicial  decisions  against  the  use  of  voting  machines  led 
to  constitutional  provisions  authorizing  such  machines  in  Pennsylvania 
(1901),  California  (1902),  Virginia  (1902),  Connecticut  (1905), 
Colorado  (1906),  and  Massachusetts  (1911).  The  movement  in  favor 
of  voting  machines  seems  to  have  languished  after  the  first  decade  of 
the  nineteenth  century,  and  proposed  amendments  to  permit  the  use 
of  voting  machines  were  rejected  in  Missouri  in  1910  and  in  Ohio  in 
1912. 

Decisions  with  respect  to  primary  elections  made  necessary  a 
constitutional  amendment  in  California  in  order  to  enact  primary  legis- 
lation. The  California  amendment  of  1900  was  somewhat  detailed 
and  had  to  be  amended  again  in  1908.  Oklahoma  in  1907  and  Ohio 
in  1912  also  adopted  constitutional  provisions  with  respect  to  primary 
elections. 

The  subject  of  absent  voting  has  been  an  active  one  during  the 
past  few  years,  and  a number  of  constitutional  amendments  have 
dealt  with  this  subject.  Probably  in  most  cases  such  amendments 
were  unnecessary  but  the  subject  was  one  of  popular  interest  and  such 
a subject  is  apt  to  come  into  constitutional  amendments  irrespective  of 
whether  an  amendment  is  necessary  in  order  to  permit  legislative 
action.  However,  it  should  be  borne  in  mind  that  during  the  Civil 
War  a number  of  laws  were  held  unconstitutional  which  made  pro- 
vision for  absent  voting  by  soldiers.  Constitutional  amendments  with 


39 


respect  to  absent  voting  were  adopted  in  Michigan  (1914,  1918), 
Massachusetts  (1917),  and  Maryland  (1918). 

Oregon  adopted  a constitutional  provision  authorizing  proportion- 
al representation  in  1908,  but  nothing  has  yet  been  done  under  this  pro- 
vision. Massachusetts  in  1918  adopted  a constitutional  amendment 
permitting  the  General  Court  of  that  state  to  establish  compulsory 
voting.  Rhode  Island  in  1911  and  Massachusetts  in  1918  changed  the 
terms  of  various  officers  from  annual  to  biennial  and  at  the  same  time 
departed  from  the  system  of  annual  elections. 

An  important  development  in  the  field  of  popular  participation  in 
government  has  been  that  with  respect  to  the  initiative,  referendum 
and  recall.  South  Dakota  in  1898  was  the  first  state  to  adopt  the 
initiative  and  referendum.  Since  that  time  these  institutions  have 
steadily  spread  until  now  the  initiative  and  referendum  are  established 
by  the  constitutions  in  South  Dakota  (1898),  Utah  (1900),  Oregon 
(1902,  1906),  Nevada  (1904,  1912),  Montana  (1906),  Oklahoma 
(1907),  Maine  (1908),  Missouri  (1908),  Arkansas  (1910),  Colorado 
(1910),  Arizona  (1911),  New  Mexico  (1911),  California  (1911), 
Idaho  (1912),  Ohio  (1912),  Nebraska  (1912),  Washington  (1912), 
Michigan  (1908,  1913),  North  Dakota  (1914,  1918),  Mississippi 
(1914),  Maryland  (referendum  1915),  Kansas  (1914),  Louisiana 
(1914),  and  Massachusetts  (1918).  The  Utah  and  Idaho  amend- 
ments are  merely  directory  to  the  legislatures  of  those  states,  and 
legislation  making  the  Utah  amendment  effective  was  not  enacted  until 
1917 ; no  legislation  bringing  these  institutions  into  operation  has  yet 
been  enacted  in  Idaho. 

In  a number  of  states  that  have  adopted  the  initiative  and  refer- 
endum, efforts  have  been  made  by  subsequent  constitutional  amend- 
ments to  restrict  these  institutions  or  to  impose  limitations  upon  their 
use.  In  every  case  restrictive  proposals  have  been  rejected  by  the 
people. 

The  initiative  and  referendum  provisions  of  the  various  states 
will  be  fully  analyzed  in  another  publication,  and  the  purpose  here  is 
merely  to  call  attention  to  the  extent  to  which  they  have  developed, 
and  to  indicate  the  importance  of  this  movement  as  one  concerning 
the  extended  share  of  popular  participation  in  government. 

The  recall  has  had  a similar  development,  although  this  develop- 
ment began  much  later  than  that  of  the  initiative  and  referendum. 
Recall  provisions  now  exist  in  Oregon  (1908),  California  (1911), 
Arizona  (1911,  1912),  Colorado  (1912),  Idaho  (1912),  Nevada 
(1912),  Washington  (1912),  Michigan  (1913),  Kansas  (1914),  and 
Louisiana  (1914).  An  Arkansas  constitutional  amendment  adopted 
by  popular  vote  in  1912  was  declared  unconstitutional  by  the  Supreme 
Court  of  that  State.1 

A Colorado  constitutional  amendment  of  1912  adopted  the  so- 
called  recall  of  judicial  decisions.  Since  1914  the  movement  for  the 
recall  seems  to  have  lost  momentum. 

The  initiative  and  referendum  have  in  a number  of  states  been 
applied  to  constitutional  amendments  as  well  as  to  the  enactment  of 


1 State  ex  rel  Little  Rock  v.  Donaghey,  106  Ark.  56  (1912). 


40 


ordinary  legislation.  In  addition  to  this  there  has  been  a fairly  definite 
tendency  to  make  the  process  of  constitutional  amendment  easier, 
although  an  exception  may  be  suggested  with  respect  to  the  New 
Mexico  constitution  of  1911.  Colorado  (1900),  Oregon  (1906),  Ohio 
(1912),  and  North  Dakota  (1918)  have  simplified  the  process  of  con- 
stitutional change,  and  the  same  may  be  said  of  the  amending  pro- 
visions in  the  Alabama  constitution  of  1901. 

Another  movement  which  may  be  said  to  be  directly  in  the  line 
of  making  easier  popular  participation  in  government  is  that  with 
respect  to  the  short  ballot.  With  the  increasing  complexity  of  govern- 
ment, it  may  properly  be  said  that  oftentimes  a means  of  increasing 
popular  control  over  government  will  result  from  reducing  the  num- 
ber of  persons  for  whom  each  elector  is  expected  to  cast  his  ballot. 
When  a certain  point  is  reached  in  the  election  of  officials,  the  addition 
of  other  elective  offices  tends  to  complicate  the  issue  before  the  people 
and  to  remove  attention  from  important  offices,  which  can  be  other- 
wise held  to  a responsibility  for  the  conduct  of  public  affairs.  During 
the  period  under  review  little  has  as  yet  been  done  by  constitutional 
change  toward  the  reduction  of  elective  officers.  By  an  Ohio  con- 
stitutional amendment  in  1912  provision  was  made  for  the  appointment 
of  a superintendent  of  public  instruction,  and  one  officer  previously 
elective  under  statutory  provisions  in  Ohio  was  thus  removed  from 
the  ballot.  By  statute  also  in  Ohio,  a public  works  commissioner  and 
a dairy  and  food  commissioner  have  been  removed  from  the  ballot. 
Indiana  in  1919  by  statute  removed  the  state  geologist  and  the  state 
statistician  from  the  ballot,  and  proposed  constitutional  amendments 
in  Indiana  will  if  adopted  provide  for  the  appointment  rather  than 
the  election  of  the  superintendent  of  public  instruction  and  of  the 
clerks  of  the  Supreme  and  Appellate  Courts. 

California  in  1911  by  constitutional  amendment  removed  the 
Clerk  of  the  Supreme  Court  and  the  railroad  commissioners  from  the 
ballot  and  California  has  also  discontinued  the  election  of  its  public 
printer.  Iowa  in  1913  by  legislation  removed  the  Supreme  Court 
Clerk  and  Reporter  from  the  ballot.  However,  two  proposed  amend- 
ments in  Ohio  in  1913  for  the  reduction  of  elective  state  and  local 
officers  were  rejected  by  the  people.  In  Tennessee,  the  state  treasurer 
and  controller  are  still  chosen  by  the  vote  of  the  two  houses.  The 
people  of  that  state  in  1904  rejected  a proposed  constitutional  amend- 
ment making  these  officers  popularly  elective. 


The  executive  department.  Some  important  developments 
have  taken  place  since  1900  with  respect  to  the  powers  and  organiza- 
tion of  the  departments  of  the  state  government.  The  tendency  to 
increase  the  governor’s  powers  has  continued.  The  veto  power  has 
been  extended.  A constitutional  amendment  in  Ohio  in  1903  vested 
an  extensive  veto  power  in  the  governor  which  could  be  overcome  by  a 
two-thirds  vote  of  the  two  houses  of  the  legislature,  but  an  amendment 
of  1912  reduced  to  three-fifths  the  legislative  majority  required  to 


41 


overcome  a veto.  Rhode  Island  for  the  first  time  conferred  a veto 
power  upon  her  governor  in  1909.  Vermont  in  1913  adopted  a con- 
stitutional amendment  requiring  a two-thirds  vote  of  the  two  houses 
to  overcome  the  governor’s  veto.  Before  this  time  the  veto  in 
Vermont  could  have  been  overcome  by  a mere  majority  vote. 

Virginia  (1902),  Ohio  (1903),  Oklahoma  (1907),  Michigan 
(1908),  Kansas  (1904),  Arizona  (1911),  New  Mexico  (1911),  Oregon 
(1916),  and  Massachusetts  (1918),  granted  to  the  governor  the  power 
to  veto  items  of  appropriation  bills.  California  in  1908  and  Wisconsin 
in  the  same  year  extended  the  period  within  which  the  governor  was 
required  to  exercise  his  veto  power.  With  respect  to  control  over 
appropriations,  attention  should  also  be  called  here  to  the  increased 
executive  power  conferred  by  the  budget  amendments  of  Maryland 
(1916),  Massachusetts  (1918),  and  West  Virginia  (1918). 

Ohio  by  constitutional  amendment  in  1903  conferred  upon  its 
governor  power  to  veto  any  section  or  sections  of  a bill  presented  to 
him,  and  to  approve  other  portions  of  the  bill  so  presented,  following 
in  this  respect  the  Washington  constitution  of  1889,  and  the  South 
Carolina  constitution  of  1895.  However,  this  power  to  veto  sections 
of  any  bill  was  withdrawn  in  Ohio  by  constitutional  amendment  of 
1912.  The  Alabama  constitution  of  1901  permits  the  governor  to 
propose  an  amendment  to  remedy  any  feature  of  a bill  which  he  does 
not  approve,  and  if  his  proposed  amendment  is  not  adopted  by  the 
two  houses,  the  bill  in  order  to  become  a law  must  be  passed  over  the 
executive  veto.  The  Virginia  constitution  of  1902  also  gives  the 
governor  power  to  recommend  the  amendment  of  a bill  if  he  approves 
its  general  purpose  but  disapproves  any  part  thereof,  and  in  this  state 
the  bill  if  amended  by  the  two  houses  or  if  they  fail  to  amend  it  in 
accordance  with  the  governor’s  recommendation,  is  again  returned  to 
the  governor  for  his  approval  or  disapproval.  A Massachusetts  con- 
stitutional amendment  adopted  in  1918  provides : “The  governor, 

within  five  days  after  any  bill  or  resolve  shall  have  been  laid  before 
him,  shall  have  the  right  to  return  it  to  the  branch  of  the  general  court 
in  which  it  originated  with  a recommendation  that  any  amendment 
or  amendments  specified  by  him  be  made  therein.  Such  bill  or  resolve 
shall  thereupon  be  before  the  general  court  and  subject  to  amendment 
and  re-enactment.  If  such  bill  or  resolve  is  re-enacted  in  any  form 
it  shall  again  be  laid  before  the  governor  for  his  action,  but  he  shall 
have  no  right  to  return  the  same  a second  time  with  a recommenda- 
tion to  amend.” 

As  a part  of  the  proposed  New  York  constitution  of  1915  an 
elaborate  re-organization  of  the  executive  department  was  provided 
for.  The  proposed  New  York  constitution  was  rejected.  A Massa- 
chusetts constitutional  amendment  adopted  in  1918  provides  for  a 
re-organization  and  consolidation  of  executive  offices  in  that  state. 
Little  has  yet  been  accomplished  through  constitutional  change  with 
respect  to  the  consolidation  and  simplification  of  the  state  executive 
organization.  However,  in  this  field  a great  deal  has  been 
accomplished  by  statute.  Rather  thoroughgoing  consolidations  in  the 
field  of  state  executive  organization  have  been  accomplished  by  statu- 


42 


tGry  provisions  in  the  state  of  New  Jersey.  However,  perhaps  the* 
most  important  single  change  was  that  made  by  legislation  in  the  state 
of  Illinois  in  3 917,  and  the  Illinois  plan  has  been  to  a large  extent 
copied  by  legislation  in  1919  in  Idaho  and  Nebraska.  While  a good 
deal  needs  to  be  done  by  constitutional  change  in  the  field  of  state 
executive  organization,  attention  should  be  called  to  the  fact  that  the 
detail  of  executive  organization  should  not  be  placed  in  a constitution. 
The  New  York  plan  with  respect  to  this  matter  was  a bad  one,  and 
it  would  be  highly  unwise  to  place  in  a new  constitution  of  Illinois 
the  details  of  the  executive  organization  as  worked  out  in  the  civil 
administrative  code  enacted  in  1917.* 1 

The  power  of  the  governor  has  also  been  increased  in  other 
respects.  The  Virginia  constitution  of  1902  authorizes  the  governor 
to  suspend  executive  officers  of  the  state  during  the  recess  of  the 
general  assembly,  the  general  assembly  itself  to  decide  at  its  next 
meeting  whether  the  suspended  officer  shall  be  restored  or  removed. 
The  governor  of  Oklahoma  is  given  power  to  require  information  in 
writing  under  oath  from  all  officers  and  commissioners  of  the  state 
and  from  all  officers  of  state  institutions.  By  the  Alabama  constitu- 
tion of  1901  and  by  the  Michigan  constitution  of  1908  the  governors 
are  given  increased  power  to  reciuire  information  in  writing  from  the 
executive  and  administrative  officers  of  these  states.  By  statute  in 
Minnesota  in  1917  the  governor  is  granted  power  to  remove  statutory 
officers.  By  legislation  in  Illinois  in  1905  the  governor  is  under  certain 
conditions  authorized  to  remove  sheriffs,  and  in  Oregon  in  1917  by 
legislation  the  governor  was  authorized  to  remove  county  clerks.  In 
Maine  in  1917  by  constitutional  amendment  the  governor  was  vested 
with  power  to  remove  sheriffs. 

The  power  of  the  governor  has  been  to  a large  extent  increased 
by  developments  in  the  states  with  respect  to  the  budget.  These  de- 
velopments have  to  a large  extent  been  statutory,  but  a number  of 
important  constitutional  proposals  have  been  made  and  adopted. 
Budget  amendments  vesting  a large  power  in  the  governor  to  submit 
estimates  to  the  legislatures,  and  depriving  legislatures  of  the  power 
to  make  increases  in  estimates  so  submitted  have  been  adopted  in 
Maryland  (1916),  Massachusetts  (1918)  and  West  Virginia  (1918). 
A similar  constitutional  amendment  is  pending  in  Indiana.  Virginia 
in  1918  by  statute  adopted  budget  proposals  similar  to  those  existing 
in  Maryland  by  constitutional  amendment.  A proposed  budget  amend- 
ment, which  was  unsatisfactory  and  which  would  have  reduced  the 
power  of  the  governor,  was  rejected  by  popular  vote  in  California 
in  1918.  Budget  proposals,  similar  to  those  adopted  in  Maryland. 
Massachusetts  and  West  Virginia,  constituted  a part  of  the  proposed 
constitution  reiected  in  New  York  in  1915.  Illinois  in  1917  adopted 
plans  for  a budget  bv  statute,  and  statutory  plans  for  a budget  have 
within  recent  years  been  adopted  in  substantially  three  fourths  of  the 
states.1 

1 See  Moley,  Raymond.  The  State  Movement  for  Efficiency  and  Economy. 
Municipal  Research  No.  90  (Oct.,  1917). 

1 Buck,  A.  E.  The  present  status  of  the  executive  budget  in  the  state 
governments,  National  Municipal  Review,  VIII,  42a  (August,  1919). 


43 


The  legislative  department.  With  respect  to  the  organization 
and  procedure  of  the  legislative  department  little  has  been  accom- 
plished since  1900.  To  sonle  extent  the  tendency  to  reduce  the 
frequency  of  legislative  sessions  has  continued.  Iowa  (1904)  has 
established  biennial  sessions  as  a substitute  for  the  previous  plan  of 
annual  sessions.  In  1906  the  voters  of  South  Carolina  voted  in  favor 
of  biennial  sessions,  but  the  legislature  did  not  approve  the  proposed 
amendment  after  the  popular  vote  in  its  favor.  However,  Mississippi 
(1910)  returned  from  quadrennial  to  biennial  sessions.  The  plan 
of  departing  from  the  quadrennial  plan  and  re-adopting  biennial 
sessions  was  rejected  in  Alabama  in  1916. 

There  has  in  recent  years  been  a good  deal  of  agitation  for  a 
single-chambered  legislature  and  plans  for  a single  chamber  have  been 
submitted  in  Oregon  (1912,  1914),  Oklahoma  (1914),  and  Arizona 
(1916).  In  all  of  these  states  the  proposal  for  a single  chamber  was 
rejected.  In  1908  the  voters  of  Oregon  adopted  an  amendment 
authorizing  the  establishment  of  proportional  representation  by  law, 
but  nothing  has  been  done  under  this  amendment,  and  an  amend- 
ment proposed  in  1914  for  the  establishment  of  proportional  repre- 
sentation in  the  election  of  members  of  the  lower  house  of  the  legis- 
lature was  rejected  by  popular  vote.  Substantially  the  only  other 
proposed  change  with  respect  to  the  organization  of  the  legislature 
was  that  in  Ohio  in  1913  when  it  was  proposed  to  reduce  very  materi- 
ally the  size  of  the  two  houses  of  the  legislature.  This  proposal  was 
rejected  by  popular  vote.  With  respect  to  fundamental  changes  in 
legislative  organization,  it  may  perhaps  be  said  that  a vigorous  move- 
ment has  been  under  way,  but  that  this  movement  is  still  in  its  infancy 
and  has  not  yet  been  strong  enough  to  make  itself  felt  in  constitutional 
provisions. 

With  respect  to  matters  of  procedure  there  have  been  a number 
of  proposals.  Michigan  in  1904,  California  in  1908  and  Colorado  in 
1918  adopted  amendments  having  to  do  with  restrictions  upon  the 
time  of  introducing  bills.  California  in  1911  provided  for  a thirty- 
day  recess  of  the  legislature  and  for  the  introduction  of  bills  prior 
to  such  recess  unless  the  consent  of  three-fourths  of  the  members 
could  be  obtained.  Massachusetts  (1918)  adopted  an  amendment 
authorizing  the  general  court  of  that  state  to  take  a recess  similar  to 
that  required  by  the  constitutional  amendment  of  California  in  1911. 

The  voters  of  Arkansas  in  1912  adopted  an  amendment  limiting 
legislative  sessions  to  sixty  days,  but  this  amendment  was  declared 
invalid  by  the  supreme  court  of  that  state.  The  voters  of  Connecticut 
in  1912  adopted  a limitation  upon  the  length  of  legislative  sessions. 
In  Wyoming  in  19 14  the  voters  rejected  a proposal  extending  the  legis- 
lative session  from  forty  to  sixty  days.  In  1912  Ohio  adopted  a 
constitutional  amendment  with  respect  to  special  sessions,  and  by  this 
amendment  no  business  may  be  transacted  at  a special  session  other 
than  that  named  in  the  proclamation  calling  the  session  or  in  a sub- 
sequent proclamation  by  the  governor  during  the  session. 

The  subject  of  legislative  apportionment  is  one  which  has  given 
rise  to  a good  many  proposals  of  amendment  during  the  period  here 


44 


under  review,  but  on  the  whole  the  amendments  adopted  seem  not 
to  have  accomplished  a great  deal.  Connecticut  and  Maryland  in  1901 
adopted  amendments  which  to  some  extent  give  a more  equitable 
apportionment  of  representatives.  Proposed  amendments  in  Rhode 
Island  in  1902  and  1905  and  in  New  Hampshire  in  1903  and  1912 
for  a more  adequate  representation  of  larger  communities  failed  of 
adoption.  However,  in  Rhode  Island  (1909)  a constitutional  amend- 
ment was  adopted  which  betters  to  some  extent  the  representative 
system  of  that  state.  Wisconsin  in  1910  adopted  a provision  for 
decennial  apportionments.  Idaho  (1912),  Mississippi  (1914),  Maine 
(1917),  and  Arizona  (1918)  adopted  constitutional  provisions  with 
respect  to  apportionment. 

Kansas  in  1906  and  Michigan  in  1908  adopted  constitutional  pro- 
visions vesting  in  the  courts  the  power  to  determine  when  special 
laws  should  be  passed.  The  constitutions  of  Alabama  (1901),  Vir- 
ginia (1902),  and  Oklahoma  (1907)  impose  strict  limitations  upon 
local  and  special  legislation,  and  a North  Carolina  amendment  of  1916 
imposes  similar  restrictions.  The  Michigan  constitution  of  1908 
definitely  limits  special  legislation  but  does  not  enumerate  in  detail 
the  subjects  upon  which  special  laws  may  not  be  passed.  The  Michi- 
gan constitution  provides  that  the  legislature  shall  pass  no  local  or 
special  act  where  a general  act  can  be  made  applicable,  and  the  question 
whether  a general  act  could  have  been  applicable  is  made  a question 
not  for  the  legislative  determination  but  for  the  decision  of  the  court. 
By  the  Michigan  provision  also  local  and  special  acts  do  not  take  effect 
until  after  they  have  been  approved  by  a majority  of  the  electors 
voting  thereon  in  the  district  to  be  affected  by  such  acts.  The  Michi- 
gan plan  is  proving  perhaps  the  most  effective  one  for  the  reduction 
of  local  and  special  legislation.1 

The  most  important  single  development  with  respect  to 
legislatures  during  the  period  under  review  is  one  which  has 
led  to  an  increase  in  legislative  power.  Constitutional  limitations 
upon  the  powers  of  the  legislature  have  usually  been  imposed  when 
some  power  has  been  exercised  unwisely,  and  it  is  perhaps  not  too 
much  to  say  that  in  most  such  cases  the  power  which  has  been  exer- 
cised unwisely  has  been  so  exercised  under  popular  pressure.  Limita- 
tions so  imposed  come  at  some  later  time  to  interfere  with  powers 
which  the  people  desire  to  have  the  legislature  exercise,  and  a develop- 
ment then  begins  of  precisely  the  reverse  order.  That  is,  the  people 
begin  by  constitutional  change  to  confer  upon  their  legislatures  powers 
which  have  previously  been  withdrawn  by  constitutional  changes. 

Perhaps  the  most  important  types  of  constitutional  limitations 
upon  the  legislature  in  this  country  are  those  which  relate  to  debt 
limits  and  to  the  prohibition  of  undertaking  other  than  governmental 
functions  by  the  states.  In  recent  years  there  has  been  a distinct 
tendency  away  from  these  limitations. 

California  (1902),  Michigan  (1905  and  1919),  New  York 
(1905),  Kentucky  (1909),  Maine  and  Ohio  (1912),  North  Dakota 

1 See  Merrills.  F.  E.  Some  aspects  of  judicial  control  over  special  and 
local  legislation.  American  Law  Review,  Vol.  47,  p.  351  (1913). 


45 


(1914),  Wyoming  (1916),  and  Louisiana  and  Pennsylvania  (1918) 
have  definitely  loosened  constitutional  restrictions  with  respect  to 
road  construction,  and  this  has  meant  at  the  same  time  a lessening  of 
limitations  with  respect  to  debt-contracting  power.  Ohio  (1912), 
Texas  (1917),  and  Massachusetts  and  South  Dakota  (1918)  have 
expressly  authorized  state  activities  with  respect  to  conservation. 
Water  power  and  forestry  activities  have  also  been  authorized  by 
constitutional  amendments  in  Wisconsin  (1910),  New  York  (1913, 
1918),  and  Minnesota  (1914). 

With  respect  to  hail  insurance  the  states  of  North  Dakota  and 
South  Dakota  expressly  authorized  state  activities  in  1918,  although 
a similar  proposal  was  rejected  in  Minnesota  in  1908  and  1910.  Farm 
loans  were  authorized  by  constitutional  amendments  in  Oregon  and 
South  Dakota  in  1916.  South  Dakota  in  1918  authorized  state  activi- 
ties with  respect  to  elevators  and  the  manufacture  of  cement.  North 
Dakota  in  191-2  and  1914  authorized  state  activities  with  respect  to 
the  operation  of  elevators,  South  Dakota  in  1916  and  1918  with  respect 
to  the  mining  and  distribution  of  coal,  and  the  same  state  in  1918 
with  respect  to  the  development  of  electric  power.  A South  Dakota 
amendment  of  1918  expressly  authorizes  the  state  to  engage  in  in- 
ternal improvements,  or  to  give  or  loan  its  credit  in  aid  of  such  im- 
provements. In  North  Dakota,  by  an  amendment  of  1918  “the  state, 
any  county  or  city,  may  make  internal  improvements  and  may  engage 
in  any  industry,  enterprise  or  business,”  other  than  the  sale  of  liquor. 

In  1917  a constitutional  amendment  in  Massachusetts  authorizes 
the  state  and  it's  municipalities  to  maintain  and  distribute  during  public 
exigency,  emergency  or  distress,  a sufficient  supply  of  food  and  other 
common  necessaries  of  life,  and  to  prpvide  shelter.  This  amendment 
was  rendered  necessary  by  opinions  of  the  supreme  judicial  court  of 
Massachusetts  opposed  to  the  exercise  of  such  powers.  In  1918  a 
constitutional  amendment  in  Massachusetts  authorized  the  use  of  the 
power  of  eminent  domain  for  the  purpose  of  taking  natural  resources, 
including  water  and  mineral  rights,  for  purposes  of  conservation. 


The  courts.  With  respect  to  the  organizations  of  courts,  per- 
haps the  most  important  single  development  has  been  that  toward  the 
increasing  of  membership  in  the  highest  state  court  or  the  creation 
of  intermediate  appellate  courts.  The  American  judicial  system  has 
been  so  organized  as  to  bring  a heavy  pressure  upon  appellate  courts, 
and  less  attention  on  the  whole  has  been  paid  to  the  trial  courts  than 
to  the  appellate  courts.  Such  a situation  is  undesirable,  but  so  long 
as  a large  proportion  of  cases  are  to  be  taken  to  appellate  courts,  some 
provision  must  be  made  for  the  determination  of  such  cases. 

Kansas  (1900),  Florida,  (1902),  West  Virginia  (1902),  Wis- 
consin (1903),  Colorado  (1904),  Nebraska  (1908,  1912),  North 
Dakota  (1908),  South  Carolina  (1910),  and  Mississippi  (1914)  have 
all  provided  for  increasing  the  number  of  members  of  their  highest 
state  courts;  and  Florida,  Colorado  and  Mississippi  provided  in  addi- 
tion for  the  separation  of  the  highest  state  court  into  divisions. 


46 


California  (1904,  1918),  Georgia  (1906,  1916)  and  Ohio  (1912)  have 
provided  for  intermediate  courts  of  appeal. 

With  respect  to  the  judges  themselves  there  have  been  a few 
constitutional  provisions  as  to  appointment,  tenure  and  retirement. 
Louisiana  in  1904  made  the  judges  of  the  supreme  court  elective  rather 
than  appointive,  and  the  same  step  was  taken  by  Mississippi  with 
respect  to  judicial  offices  in  1910  and  1914.  In  1905  Ohio  provided 
for  the  lengthening  of  terms  of  judges  and  South  Carolina  in  1910 
extended  the  term  of  justices  of  the  supreme  court  from  eight  to  ten 
years.  On  the  other  hand,  Mississippi  in.  1914  reduced  the  term  of 
supreme  court  judges  from  nine  to  eight  years.  From  the  standpoint 
of  retirement  of  judges,  perhaps  the  most  important  constitutional  de- 
velopments are  tnose  in  J^ousiana  in  1910,  by  which  judges  of  the  su- 
preme court  who  have  served  for  fifteen  years  and  reached  the  age  of 
7 5,  may  retire  on  full  pay.  A further  amendment  in  1918  permits  the  re- 
tirement of  judges  of  lower  courts  at  the  age  of  75,  provided  they  have 
served  a period  of  25  years. 

With  respect  to  the  removal  of  judges,  a Massachusetts  constitu- 
tional amendment  of  1918  provides  that  the  governor  “with  the  con- 
sent of  the  council  may  after  due  notice  and  hearing”  retire  judges 
because  of  advanced  age  or  mental  or  physical  disability.  The  Massa- 
chusetts amendment  further  provides  that  such  retirement  shall  be 
subject  to  any  provisions  made  by  law  as  to  pensions  or  allowances 
payable  to  such  officers  upon  their  voluntary  retirement.  The  Massa- 
chusetts provision  with  respect  to  the  removal  of  judges  should  of 
course  be  read  with  the  power  of  the  governor  to  appoint  judges  and 
with  the  provisions  of  the  Massachusetts  constitution  for  judicial 
tenure  during  good  behavior. 

In  New  Jersey  a proposed  judicial  re-organization  was  rejected 
by  popular  vote  in  1909.  To  come  to  lesser  matters,  with  respect  to 
judicial  organization,  it  may  be  repeated  that  California  in  1909  by 
constitutional  amendment  made  the  clerk  of  the  supreme  court  of 
that  state  appointive  rather  than  elective. 

California  in  1911  and  1914  adopted  constitutional  amendments 
with  respect  to  the  setting  aside  of  judgments  in  criminal  cases  for 
immaterial  errors.  Ohio  in  1912  by  constitutional  amendment  ex- 
pressly authorized  legislative  action  with  respect  to  the  subject  of 
expert  testimony. 

The  jury  system  has  been  the  subject  of  some  constitutional  legis- 
lation during  the  period  since  1900.  Missouri  (1900),  Oregon  (1910), 
Ohio  (1912)  and  Mississippi  (1914),  permit  verdicts  in  civil  cases  by 
less  than  a unanimous  jury. 

With  respect  to  the  grand  jury  also  there  has  been  some  develop- 
ment, constitutional  provisions  as  to  informations  and  indictments 
having  been  adopted  in  Missouri  (1900),  Minnesota  (1904),  Oregon 
(1908)  and  Nevada  (1912). 

With,  the  respect  to  the  exercise  of  judicial  power,  the  two- 
matters  of  most  importance  within  recent  years  have  been  those  with 
respect  to  the  punishment  of  contempts  and  the  power  of  the  courts 
to  declare  laws  unconstitutional. 


47 


Oklahoma  in  1907  adopted  a constitutional  provision  regarding 
trial  for  contempt  of  court;  but  Colorado  and  Ohio  in  1912  rejected 
proposed  constitutional  amendments  dealing  with  this  subject.  Ohio 
in  1912  and  North  Dakota  in  1918  adopted  constitutional  amendments 
prohibiting  the  declaration  of  a law  unconstitutional  if  more  than  one 
judge  of  the  highest  state  court  dissented.  Minnesota  in  1914  rejected 
a similar  proposal.  Colorado  in  1912  adopted  the  so-called  recall  of 
judicial  decisions,  by  which  a decision  of  the  court  declaring  a statute 
unconstitutional  may  be  overcome  by  popular  vote. 

Taxation.  Since  1900  there  has  been  a large  and  increasing 
number  of  constitutional  amendments  on  taxation.  From  1900  to 
1906,  48  proposed  amendments  were  voted  on,  of  which  38  were 
adopted  and  10  failed.  From  1907  to  1918,  209  amendments  were 
submitted,  of  which  104' were  adopted  and  105  failed. 

This  movement  has  been  widespread.  One  or  more  amendments 
have  been  submitted  in  all  but  six  states  (Vermont,  Connecticut, 
Rhode  Island,  Delaware,  New  Jersey  and  Indiana).  But  some  states 
have  been  much  more  active  than  others.  Proposed  amendments 
have  been  most  numerous  in  Louisiana  (35),  California  (30),  and 
Missouri  (23)  ; and  have  also  been  frequent  in  Oregon  (18),  Utah 
(13),  South  Carolina  (14),  Minnesota  (11)  and  Ohio  (10).  In 
Missouri  and  Minnesota  most  of  the  amendments  proposed  have  been 
defeated. 

A large  number  of  these  proposed  amendments  have  been  on 
matters  of  minor  importance,  such  as  changes  in  tax  rates  and  methods 
of  administration,  taxes  for  specific  purposes,  small  changes  in  ex- 
emptions, and  (in  South  Carolina)  granting  authority  for  special 
assessments  to  particular  cities  and  towns.  But  important  changes 
in  taxation  have  also  been  proposed  and  adopted. 

Provisions  authorizing  the  classification  of  property  for  purposes 
of  taxation  have  been  submitted  in  twenty  states  (in  some  states  on 
several  occasions),  and  have  been  adopted  in  eleven  states;  Minnesota, 
Michigan.  Oklahoma,  New  Mexico,  Arizona,  Louisiana,  Kentucky, 
North  Dakota,  South  Dakota,  Maryland  and  Oregon. 

A number  of  states  have  provided  for  some  modifications  of  the 
general  property  tax,  by  provisions  for  exemptions  or  for  special  tax- 
ation of  certain  classes  of  property:  Mortgages  have  been  exempted 
in  Utah,  Louisiana,  California  and  North  Carolina ; double  taxation 
of  mortgages  and  the  property  mortgaged  has  been  eliminated  in 
Ohio  ; and  a special  tax  on  intangible  property  has  been  established 
in  Maine.  State  income  taxes  have  been  authorized  in  Virginia,  Wis- 
consin, Ohio  and  Massachusetts : special  corporation  taxes  in  Ohio, 
South  Dakota  .and  Louisiana ; special  methods  of  taxing  mines  in  Vir- 
ginia, Nevada  and  Utah ; and  special  taxes  on  or  exemptions  of  forest 
lands  in  Massachusetts  and  Ohio.  Exemptions  have  been  provided 
for  vessels  in  California,  Louisiana  and  Oregon ; for  property  of  edu- 
cational institutions  in  California ; and  for  farm  products  in  the  hands 
of  the  producer  in  Georgia. 


Active  efforts  have  been  made  to  obtain  other  and  more  radical 
changes  in  taxation.  The  separation  of  state  and  local  taxation  has 
been  authorized  in  Oklahoma  and  more  definitely  established  in  Cali- 
fornia but  has  failed  in  other  states.  The  single  tax  on  land  values 
has  been  proposed  in  several  states  (sometimes  in  connection  with 
provisions  authorizing  income,  excise  and  inheritance  taxes),  but  thus 
far  has  not  been  adopted  in  any  state.  Single  tax  proposals  were 
rejected  in  Colorado  (1902),  Missouri  (1912,  1918),  Oregon  (1912) 
and  California  (1916,  1918).  A proposed  amendment  authorizing 
local  option  in  taxation  was  adopted  in  Oregon  in  1910,  but  was  re- 
pealed two  years  later.  California  in  1912  rejected  local  option  in 
taxation. 


Local  government  and  municipal  home  rule.  The  most  im- 
portant development  in  this  field  has  been  with  respect  to  municipal 
home  rule.  The  greater  part  of  the  development  toward  giving  cities 
power  to  frame  and  revise  their  own  charters  has  taken  place  since 
1900,  although  constitutional  provisions  as  to  this  subject  existed 
in  Missouri,  Washington,  California  and  Minnesota  before  1900.  To 
the  states  just  mentioned  have  been  added  Colorado  (1902,  1912), 
Oregon  (1906,  1910),  Oklahoma  (1907),  Michigan  (1908,  1912), 
Arizona  (1911),  Nebraska,  Ohio,  Texas  (1912)  and  Maryland 
(1915).  During  the  period  under  review  the  California  home  rule 
provisions  have  been  amended  five  times  and  have  become  so  complex 
and  so  detailed  that  frequent  additional  amendments  in  the  future  will 
be  necessary. 

Other  tendencies  in  the  direction  of  home  rule  may  be  noted. 
Home  rule  in  the  framing  of  county  government  was  provided  for  in 
California  in  1911  and  in  Maryland  in  1915.  Colorado  by  constitu- 
tional amendment  in  1902  not  only  provides  for  city  home  rule  but 
also  for  county  home  rule  for  the  city  and  county  of  Denver.  Oregon 
in  1910  provided  for  home  rule  in  matters  of  taxation  but  this  power 
was  withdrawn  in  1912.  In  California  proposed  amendments  for 
home  rule  in  taxation  and  with  respect  to  city-county  consolidation 
were  rejected  in  1912.  Oregon  in  1908  rejected  a proposal  for  munici- 
pal home  rule  with  respect  to  police  legislation.  Another  constitu- 
tional matter  having  a close  bearing  upon  local  home  rule  is  the  Illinois 
constitutional  amendment  of  1904  permitting  special  legislation  for 
Chicago  subject  to  a local  referendum. 

With  reference  to  the  granting  of  franchises  several  new  consti- 
tutions during  this  period  confer  additional  power  upon  municipal 
corporations,  but  also  impose  wise  restrictions  upon  the  use  of  such 
power.  Alabama  gives  its  cities  absolute  control  over  the  use  of 
their  streets  for  public  utilities  or  private  enterprises,  but  forbids  any 
town  or  city  having  more  than  six  thousand  inhabitants  to  grant  a 
franchise  for  a longer  term  than  thirty  years.  The  Virginia  consti- 
tution contains  similar  provisions,  but  requires  in  addition  that  munici- 
pal franchises  be  sold  only  after  proper  public  advertisement,  and 
that  an  ordinance  for  such  a purpose  be  passed  by  an  affirmative  vote 


49 


of  three-fourths  of  all  members  elected  to  the  city  council.  Oklahoma 
and  Arizona  permit  their  cities  to  engage  in  the  business  of  supplying 
public  utilities,  limit  franchises  to  a term  of  twenty-five  years,  and 
provide  that  they  shall  not  be  granted,  extended,  or  renewed  without 
the  approval  of  the  qualified  electors.  Michigan  permits  its  cities  and 
villages  to  acquire,  own,  and  operate  their  public  utilities,  but  cities 
and  villages  are  forbidden  to  grant  any  franchise  not  revocable  at 
will  or  to  acquire  any  public  utility  unless  such  action  is  first  approved 
by  an  affirmative  vote  of  three-fifths  of  the  electors  of  such  city  or 
village ; franchises  may  not  be  granted  for  a longer  term  than  twenty 
years.  Ohio  (1912)  confers  similar  powers  upon  cities.  Colorado 
by  an  amendment  of  1902  forbids  a city  to  grant  franchises  except 
by  a vote  of  its  taxpaying  electors. 

Michigan  in  1908  adopted  a provision  that:  “When  a city  or 

village  is  authorized  to  acquire  or  operate  any  public  utility,  it  may 
issue  mortgage  bonds  therefor  beyond  the  general  limit  of  bonded 
indebtedness  prescribed  by  law:  Provided,  that  such  mortgage  bonds 
issued  beyond  the  general  limit  of  bonded  indebtedness  prescribed  by 
law  shall  not  impose  any  liability  upon  such  city  or  village,  but  shall 
be  secured  only  upon  the  property  and  revenues  of  such  public 
utility,  including  a franchise  stating  the  terms  upon  which,  in  case  of 
foreclosure,  the  purchaser  may  operate  the  same,  which  franchise 
shall  in  no  case  extend  for  a longer  period  than  twenty  years  from  the 
date  of  the  sale  of  such  utility  and  franchise  on  foreclosure.”  The 
same  plan  has  been  adopted  in  Ohio  (1912),  and  New  York  constitu- 
tional amendments  accomplish  much  the  same  purpose. 

A number  of  other  states  authorize  loans,  beyond  the  ordinary 
debt  limit  for  public  improvements  and  for  waterworks  and  other 
utilities.  Among  these  may  be  mentioned  Virginia  (1902),  South 
Dakota  (1902)  and  Texas  (1904). 

With  respect  to  county  government,  little  has  yet  been  accom- 
plished, aside  from  the  county  home  rule  provisions  referred  to  above. 

A proposed  constitutional  amendment  to  be  submitted  in  New  York 
in  1919  seeks  to  give  to  the  legislature  a wider  power  with  respect  to 
the  organization  of  both  city  and  county  government.  Ohio  in  1913 
rejected  a proposed  constitutional  amendment  reducing  the  number  of 
elective  county  offices. 

To  some  extent  there  has  been  a slight  reduction  in  the  number  ’ 
of  county  and  local  officers  by  legislation  or  otherwise.  The  legislation 
in  Illinois  abolishing  the  office  of  township  collector  and  providing 
for  but  one  road  officer  in  each  township  or  district  indicates  a tend- 
ency in  this  direction  within  this  state,  but  as  yet  substantially  little 
has  been  accomplished  throughout  the  country  toward  the  simplifica- 
tion of  the  very  complex  organization  of  local  government  or  toward 
the  reduction  of  numerous  overlapping  and  conflicting  local  areas. 

During  the  period  under  review  there  has  been  a rather  distinct 
tendency  toward  the  relaxing  of  debt  limits  for  cities  and  counties 
and  this  tendency  has  been  particularly  apparent  with  respect  to 
undertakings  of  a revenue  producing  character. 


50 


Miscellaneous  Matters.  With  respect  to  labor  a large  number 
of  constitutional  changes  have  been  introduced  into  constitutions  since 
1900.  Perhaps  the  most  important  of  these  changes  are  those  which 
relate  to  (1)  hours  of  employment  on  public  work,  (2)  workmen’s 
compensation,  and  (3)  the  minimum  wage.  To  some  extent  consti- 
tutional provisions  in  this  field  have  been  forced  by  judicial  decisions 
adverse  to  state  legislation,  but  the  bulk  of  labor  provisions  in  state 
constitutions  are  primarily  statutory  in  character  and  relate  to  matters 
which  might  have  been  completely  left  to  legislative  action.  The 
bulk  of  these  provisions  may  perhaps  be  said  to  be  directory  in 
character;  that  is,  provisions  which  merely  say  that  the  legislature 
shall  have  power  to  do  certain  things  or  shall  do  certain  things. 

A new  field  of  possible  constitutional  provisions  with  respect  to 
labor  is  that  concerning  health  insurance.  The  people  of  California 
in  1918  rejected  a constitutional  provision  expressly  authorizing  health 
insurance. 

There  have  been  a number  of  constitutional  changes  in  recent 
years  extending  the  uses  of  the  power  of  eminent  domain,  either 
expressly  authorizing  excess  condemnation,  or  with  respect  to  specific 
uses  of  eminent  domain,  such  as  lumber  roads  and  the  conservation 
of  natural  resources. 

Somewhat  analogous  to  these  constitutional  provisions  are  amend- 
ments rejected  in  Ohio  (1912)  and  adopted  in  Massachusetts  (1918) 
expressly  conferring  power  upon  the  legislatures  to  regulate  advertis- 
ing upon  public  roads,  highways,  etc. 

The  new  constitutions  of  Alabama,  Virginia,  Oklahoma,  Michi- 
gan, Arizona  and  New  Mexico  require  that  corporations  be  organized 
under  general  laws.  Each  of  these  six  constitutions  contains  rather 
full  provisions  regarding  corporations,  more  especially  with  reference 
to  public  service  corporations.  Oklahoma  has  gone  further  than  any 
other  state  in  the  regulation  of  corporations  by  constitutional  enact- 
ment, and  has  embodied  in  its  constitution  an  elaborte  code  of  cor- 
poration law  relating  more  particularly  to  public  service  corporations. 
Alabama  authorizes  its  legislature  to  fix  railroad  rates.  Michigan, 
whose  former  constitution  granted  the  legislature  power  to  fix  rail- 
road rates,  in  1908  extended  this  power  to  express  rates  also,  and 
permits  the  creation  of  a commission  to  regulate  railway  and  express 
rates.  Virginia  transferred  control  over  private  corporations  and 
over  rates  of  public  service  corporations  to  a state  corporation  com- 
mission. Oklahoma,  Arizona  and  New  Mexico  have  also,  by  their 
constitutions,  established  corporation  commissions.  Nebraska  in  1906, 
by  a constitutional  amendment,  created  a railroad  commission  with 
power  to  regulate  the  rates  and  services  of  common  carriers.  Ohio 
in  1912  adopted  a constitutional  amendment  expressly  authorizing  the 
regulation  of  corporations.  California  in  1911  created  a railroad  com- 
mission by  constitutional  amendment,  and  Nebraska  in  .1906 
established  a railway  commission  in  the  same  manner. 

The  period  since  1900  has  been  peculiarly  prolific  of  constitutional 
and  statutory  provisions  with  respect  to  the  sale  of  liquor.  A whole 
series  of  states  have  adopted  constitutional  prohibition,  but  a review1 


51 


of  state  activity  in  this  field  is  unnecessary  now  in  view  of  the  federal 
amendment  covering  this  subject. 

Civil  service  is  another  matter  as  to  which  some  constitutional 
development  has  taken  place  since  1900,  although  this  development 
has  limited  itself  to  the  states  of  California  (1911),  Ohio  (1912),  and 
Colorado  (1918). 


Summary.  The  statement  here  merely  attempts  to  sum  up 
the  chief  lines  of  constitutional  development  since  1900.  With  a num- 
ber of  new  constitutions  and  with  some  1500  proposed  amendments 
of  which  more  than  900  were  adopted,  it  is  impossible  to  do  more  in 
this  statement  than  to  indicate  the  main  lines  of  development.  As 
has  already  been  said,  the  greater  number  of  constitutional  changes  have 
related  to  matters  of  detail,  which  could  not  be  brought  within  any 
statement  of  general  or  broad  developments.  It  seems  desirable  here 
to  repeat  the  statement  that  a large  proportion  of  the  changes  which 
have  taken  place  by  constitutional  amendment  or  revision  are  relative- 
ly less  important  than  changes  made  in  the  same  states  by  statute. 
The  use  of  the  compulsory  referendum  for  the  enlargement  of  the 
bounds  of  constitutional  development  has  gone  so  far  that  if  one  were 
speaking  of  all  of  the  constitutional  proposals  since  1900,  it  is  neces- 
sary to  say  that  the  bulk  of  them  were  relatively  unimportant  and 
were  matters  which  if  they  had  been  possible  without  a popular  vote 
would  never  have  been  submitted  to  the  people  under  any  plan  by 
which  popular  petition  could  have  required  such  submission. 

A matter  of  general  interest  at  a particular  time  is  likely  to  be 
dealt  with  by  constitutional  provisions,  irrespective  of  whether  there 
is  any  specific  need  of  placing  it  in  the  constitution.  Many  new  matters 
dealt  with  in  constitutions  are  handled  by  giving  directions  to  the  legis- 
latures. That  is,  the  legislatures  are  directed  or  authorized  to  take 
certain  action.  Provisions  of  this  character  are  ordinarily  inserted  at 
the  instance  of  advocates  of  action  as  to  the  particular  matter,  but 
under  them  there  is  no  legal  method  of  forcing  legislative  action.  If 
the  provisions  relate  to  matters  already  within  the  legislative  power, 
their  only  effect  is  to  compel  the  legislature,  if  it  acts,  to  act  within 
the  limits  of  such  provisions.  For  example,  a command  to  the  legis- 
lature to  enact  a particular  type  of  workmen’s  compensation  law  will 
not  compel  the  legislature  to  enact  such  legislation,  but  legally  will 
have  the  negative  effect  of  preventing  the  enactment  of  any  other 
type  of  workmen’s  compensation  law. 

Attention  should  again  be  called  to  the  fact  that  detailed  consti- 
tutional provisions  introduced  either  by  amendment  or  otherwise 
necessarily  lead  to  further  and  frequent  changes.  The  California  con- 
stitutional provisions  for  municipal  home  rule  are  a striking  example 
of  this  statement.  Michigan  in  1914  adopted  a constitutional  amend- 
ment with  respect  to  absent  voting,  enumerating  the  classes  of  voters 
to  be  affected,  and  found  it  necessary  in  1918  to  amend  the  constitu- 
tion again  in  order  to  include  a new  class  of  voters.  Detailed  constitu- 


52 


tional  provisions  tend  by  amendment  to  become  more  detailed  as  new 
contingencies  arise,  if  the  constitution  is  easily  amendable ; if  not  they 
prevent  progress.  A broad  constitutional  provision  does  not  require 
frequent  change. 

Another  matter  to  which  attention  may  be  called  is  the  tendency 
of  the  people  to  disapprove  proposals  for  increases  of  salaries.  No 
matter  how  low  a salary  may  be  and  no  matter  how  clear  may  be  the 
need  for  increase,  this  statement  applies  equally  as  if  the  proposals 
were  ones  for  extravagant  or  unreasonable  increases.  Voters  are 
particularly  apt  to  reject  proposals  for  the  increase  of  salaries  of  mem- 
bers of  legislative  bodies. 

Another  tendency  which  may  be  noted  (and  which  applies  to 
increase  of  salary  as  well  as  to  other  matters)  is  that  the  voters  are 
apt  finally  to  approve  a proposed  amendment  if  it  is  submitted  a suf- 
ficient number  of  times.  Persistence  in  submitting  a proposal  at  each 
biennial  election  is  apt  finally  to  be  rewarded  by  success. 


APPENDIX. 


ACT  CALLING  CONSTITUTIONAL  CONVENTION. 


An  Act  to  assemble  a convention  to  revise,  alter  or  amend  the  Con-* 
stitution  of  the  State  of  Illinois. 

Section  1.  Be  it  enacted  by  the  people  of  the  State  of  Illinois , 
represented  in  the  General  Assembly:  That  at  the  hour  of  12  o’clock 
noon,  on  the  sixth  day  of  January,  1920,  a convention  to  revise,  alter 
or  amend  the  Constitution  of  the  State  of  Illinois  shall  meet  in  the 
hall  of  the  Representatives  of  the  General  Assembly  in  the  capitol 
building,  in  the  City  of  Springfield.  The  Secretary  of  State  shall 
take  such  steps  as  may  be  necessary  to  prepare  the  hall  of  the  Repre- 
sentatives for  the  meeting  of  the  convention. 

§ 2.  The  convention  shall  consist  of  one  hundred  and  two  dele- 
gates. Two  delegates  shall  be  elected  in  and  from  each  district 
entitled  by  law  to  elect  a senator  to  the  General  Assembly.  Delegates 
shall  possess  the  same  qualifications  as  State  senators.  The  Governor, 
or  the  person  exercising  the  powers  of  Governor,  shall  issue  writs  of 
election  to  fill  vacancies  in  the  convention. 

§ 3.  A primary  election  for  the  nomination  of  candidates  for  the 
position  of  delegate  shall  be  held  on  the  tenth  day  of  September,  1919. 
All  provisions  of  law  in  force  at  such  time,  and  applying  to  the  nom- 
ination of  candidates  for  the  office  of  State  senator,  shall  to  the  extent 
that  they  are  not  in  conflict  with  the  terms  of  this  Act,  apply  to  the 
primary  election  herein  provided  for. 

Vacancies  created  by  the  death  of,  or  the  declination  of  the  nom- 
ination by  any  person  nominated  as  a candidate  for  the  position  of  a 
delegate,  shall  be  filled  in  the  manner  provided  by  law  for  the  filling 
of  similar  vacancies  occasioned  by  the  death  of,  or  declination  of  the 
nomination  by  any  person  nominated  as  a candidate  for  the  office  of 
State  senator. 

Independent  nominations  for  the  position  of  delegate  may  be 
made  in  the  manner  now  provided  by  law  for  the  nomination  of  inde- 
pendent candidates  by  petition. 

§ 4.  The  delegates  shall  be  chosen  at  an  election  to  be  held  on  the 
fourth  day  of  November,  1919.  Such  election  shall  be  conducted  in 
conformity  with  the  laws  then  in  force  relating  to  elections  for  State 
senators,  to  the  extent  that  such  laws  are  applicable. 

All  votes  cast  in  the  election  for  delegates  shall  be  tabulated,  re- 
turned and  canvassed  in  the  manner  then  provided  by  law  for  the 
tabulation,  return  and  canvass  of  votes  cast  in  elections  for  State 
senators. 


54 


The  official  or  officials,  charged  with  the  duty  of  issuing  certifi- 
cates of  election  to  persons  elected  to  the  office  of  State  senator,  shall 
issue  certificates  of  election  to  all  persons  duly  elected  as  delegates. 

Election  contests  for  membership  in  the  convention  shall  be 
heard  and  determined  by  the  convention. 

§ 5.  Each  delegate  before  entering  upon  his  duties  as  a member 
of  the  convention,  shall  take  an  oath  to  support  the  Constitutions  of 
the  United  States  and  of  the  State  of  Illinois,  and  to  discharge  faith- 
fully his  duties  as  a member  of  the  convention.  In  going  to  and  re- 
turning from  the  convention  and  during  the  sessions  thereof  the 
delegates  shall,  in  all  cases,  except  treason,  felony  or  breach  of  the 
peace,  be  privileged  from  arrest;  and  they  shall  not  be  questioned  in 
any  other  place  for  any  speech  or  debate  in  the  convention. 

§ 6.  Each  delegate  shall  receive  for  his  services  the  sum  of  two 
thousand  dollars,  payable  at  any  time  after  the  convention  is  organized. 
The  delegates  shall  be  entitled  to  the  same  mileage  as  is  paid  to  the 
members  of  the  General  Assembly,  to  be  computed  by  the  Auditor  of 
Public  Accounts.  The  delegates  shall  receive  no  other  allowance  or 
emoluments  whatever,  except  the  sum  of  fifty  dollars  to  each  delegate, 
which  shall  be  in  full  for  postage,  stationery,  newspapers,  and  all  other 
incidental  expenses  and  perquisites.  The  pay  and  mileage  allowed  to 
each  delegate  shall  be  certified  to  by  the  president  of  the  convention 
and  entered  on  the  journal  of  the  convention. 

§ 7.  The  convention  shall  determine  the  rules  of  its  procedure, 
shall  be  the  judge  of  the  election,  returns,  and  qualifications  of  its 
members,  and  shall  keep  a journal  of  its  proceedings. 

The  Governor  shall  call  the  convention  to  order  at  its  opening 
session  and  shall  preside  over  it  until  a temporary  or  permanent  pre- 
siding officer  shall  have  been  chosen  by  the  delegates. 

The  delegates  shall  elect  one  of  their  own  number  as  president  of 
the  convention,  and  they  shall  have  power  to  appoint  a secretary  and 
such  employes  as  may  be  deemed  necessary.  The  secretary  shall 
receive  a compensation  of  fifteen  dollars  ($15.00)  per  day.  The 
employes  of  the  convention  shall  receive  such  compensation  as  shall 
be  determined  upon  by  the  convention. 

§ 8.  The  proceedings  of  the  convention  shall  be  filed  in  the  office 
of  the  Secretary  of  State.  The  revision  or  alteration  of,  or  the  amend- 
ments to  the  Constitution,  agreed  to  and  adopted  by  the  convention, 
shall  be  recorded  in  the  office  of  the  Secretary  of  State. 

The  revision  or  alteration  of,  or  the  amendments  to  the  Constitu- 
tion, adopted  by  the  convention,  shall  be  submitted  to  the  electors  of 
this  State  for  ratification  or  rejection,  at  an  election  appointed  by  the 
convention  for  that  purpose,  not  less  than  two  months,  nor  more  than 
six  months  after  the  adjournment  of  the  convention.  The  convention 
shall  determine  the  manner  in  which  such  revision,  alteration  or 
amendment  shall  be  submitted  to  the  electors.  The  convention  shall 
prescribe  the  manner  and  form  in  which  such  revision,  alteration  or 
amendments  shall  be  published  prior  to  the  submission  thereof  to  the 
electors.  No  such  revision,  alteration  or  amendments  shall  take  effect 
unless  approved  by  a majority  of  the  electors  voting  at  such  election. 


55 


The  convention  shall  designate  or  fix  the  day  or  days  upon  which 
such  revision,  alteration  or  amendments,  if  adopted  by  the  voters, 
shall  become  effective. 

§ 9.  Notices  of  the  election  to  be  called  by  the  convention  shall  be 
given  in  the  manner  and  form  prescribed  by  the  convention.  The  con- 
vention shall  prescribe  the  manner  and  form  of  voting  at  such  election, 
and  the  ballots  for  use  in  such  election  shall  be  printed  accordingly, 
by  the  officials  charged  with  the  duty  of  printing  ballots  for  use  in 
general  elections. 

The  votes  cast  at  such  election  shall  be  tabulated,  returned  and 
canvassed  in  such  manner  as  may  be  directed  by  the  convention. 

§ 10.  Every  person  who,  at  the  time  of  the  holding  of  any  pri- 
mary or  other  election  provided  for  in  this  Act,  is  a qualified  elector 
under  the  Constitution  and  laws  of  this  State,  shall  be  entitled  to 
vote  in  such  election. 

The  primary  and  other  elections  provided  for  in  this  Act  shall 
be  held  at  the  places  fixed  by  law  for  the  holding  of  general  elections 
and  shall  be  conducted  by  the  officials,  judges  and  clerks  charged  with 
the  duty  of  conducting  general  elections. 

All  laws  then  in  force  in  relation  to  the  registration  of  voters  in 
primary  and  general  elections,  and  all  laws  then  in  force  for  the  pre- 
vention of  fraudulent  and  illegal  voting,  shall  be  applicable  to  the 
primary  and  other  elections  provided  for  in  this  Act. 

All  laws  in  force  governing  elections  and  not  inconsistent  with 
the  provisions  of  this  Act,  or  with  powers  exercised  under  the  terms 
hereof,  shall  apply  to  and  govern  elections  held  under  the  terms  of 
this  Act. 

§ 11.  The  convention  shall  have  power  to  punish  by  imprison- 
ment, any  person,  not  a member,  who  shall  be  guilty  of  disrespect  to 
the  convention,  by  disorderly  or  contemptuous  behavior  in  its  presence. 
But  no  such  imprisonment  shall  extend  beyond  twenty-four  hours  at 
any  one  time,  unless  such  person  shall  persist  in  such  disorderly  or 
contemptuous  behavior.  Commitments  for  disorderly  or  contemptu- 
ous behavior  in  the  presence  of  the  convention  shall  be  made  in  the 
manner  now  provided  by  law  for  the  commitment  of  persons  guilty  of 
disrespect  to  the  General  Assembly. 

§ 12.  It  shall  be  the  duty  of  all  public  officers  to  furnish  the  con- 
vention with  any  and  all  statements,  papers,  books,  records  and  public 
documents  that  the  convention  shall  require.  The  convention,  and  its 
committees,  shall  have  the  same  power  to  compel  the  attendance  of 
witnesses,  or  the  production  of  papers,  books,  records  and  public 
documents,  as  is  now  exercised  by  the  General  Assembly,  and  its  com- 
mittees, under  the  provisions  of  an  Act  entitled,  “An  Act  to  revise 
the  law  in  relation  to  the  General  Assembly,”  approved  and  in  force 
February  25,  1874. 

§ 13.  The  sum  of  five  hundred  thousand  dollars  ($500,000),  or 
so  much  thereof  as  may  be  necessary,  is  hereby  appropriated  for  the 
payment  of  salaries  and  other  expenses  properly  incident  to  the  con- 
stitutional convention.  The  Auditor  of  Public  Accounts  is  hereby 
authorized  and  directed  to  draw  warrants  on  the  State  Treasurer 


56 


for  the  foregoing  amount  or  any  part  thereof,  upon  the  presentation 
of  itemized  vouchers  certified  to  as  correct  by  the  president  of  the 
constitutional  convention  or  the  acting  president  of  the  convention. 
All  printing,  binding,  stationery  and  other  similar  supplies  for  the  con- 
stitutional convention  shall  be  furnished  through  the  Department  of 
Public  Works  and  Buildings. 

Approved  June  21,  1919. 


CONSTITUTIONAL  CONVENTION 


BULLETIN  No.  2 


The  Initiative,  Referendum 
and  Recall 


Compiled  and  Published  by  the 

LEGISLATIVE  REFERENCE  BUREAU 

Springfield,  Illinois 


[Printed  by  authority  of  the  State  of  Illinois.] 


LEGISLATIVE  REFERENCE  BUREAU. 


Governor  Frank  O.  Lowden,  Chairman. 
Senator  Edward  C.  Curtis,  Grant  Park. 
Senator  Richard  J.  Barr,  Joliet. 
Representative  Edward  J.  Smejkal,  Chicago. 
Representative  William  P.  Holaday,  Danville. 


E.  J.  Verlie,  Secretary. 

W.  F.  Dodd,  in  charge  collection  of  data  for 
constitutional  convention. 


TABLE  OF  CONTENTS. 


PAGE 


I.  Summary  65 

II.  Definitions  and  Types 67 

Initiative  67 

Referendum  67 

Relationship  between  Initiative  and  Referendum 69 

Recall  of  Judicial  Decisions  69 

Recall  of  Public  Officers 69 

III.  Institutions  in  Illinois 71 

Public  Policy  Law 71 

State-wide  referenda. 72 

Referenda  in  Chicago 74 

IV.  Outline  of  Development  of  the  Initiative  and 

Referendum  in  Other  States 80 

V.  Detailed  Analysis  of  the  Initiative  and  Referendum  84 

Types  of  the  Initiative 84 

Draftsmanship  86 

Conflicting  or  Competing  Measures 86 

Emergency  Measures  88 

Limitations  upon  the  use  of  the  Referendum  91 

Limitations  upon  the  use  of  the  Initiative  92 

Use  of  the  Initiative  for  constitutional  changes 92 

Use  of  the  Referendum  upon  federal  questions 93 

Legislative  submission  of  measures  to  the  Referendum  94 

Petitions  under  the  Initiative  and  Referendum 94 

Titles  97 

Publicity  of  measures 97 

Popular  votes  upon  initiated  and  referred  measures . . 98 

Amendment  and  repeal  of  measures  approved  by  the 

people  99 

Effect  of  the  Initiative  and  Referendum  upon  the  Gov- 
ernor’s veto  power 100 


LXll 


CONTENTS— Continued. 

PAGE. 

VI.  Analysis  of  Results 101 

Use  of  the  Initiative  and  Referendum 101 

Elections  at  which  a large  number  of  measures  have 

been  submitted 103 

Analysis  of  submissions  by  types  of  measures 104 

(a)  Constitutional  amendments  104 

(b)  Legislative  Initiative  as  compared  with  popular 

Initiative  105 

(c)  Relationship  between  optional  and  compulsory  ref- 

erendum   105 

(d)  Extent  of  popular  vote 106 

Proportion  of  measures  adopted 108 

VII.  Problems  and  Conclusions 110 

General  statement  110 

Draftsmanship  110 

Petitions  Ill 

Submission  to  voters Ill 

Popular  vote  112 

Emergency  measures  and  the  Referendum 113 

Relationship  between  the  Initiative  and  the  Referen- 
dum and  the  regular  legislature 114 

Relation  between  the  Initiative  and  the  Referendum 

and  the  constitution 115 

Limitation  of  measures  to  be  submitted  to  popular  vote  116 
Comments  upon  Initiative  and  Referendum  provisions 
in  the  constitutions 117 

VIII.  Recall  of  Judicial  Decisions 119 

IX.  Recall  of  Officers 120 

Appendix  No.  1.  References  123 

Appendix  No.  2.  Text  of  Initiative  and  Referendum  provisions  124 

(1)  Utah  124 

(2)  Oregon,  constitutional  amendments,  statutes 124 

(3)  Ohio  135 

(4)  Michigan  139 

(5)  Nebraska  142 

(6)  Massachusetts  144 

(7)  North  Dakota 151 

(8)  Wisconsin,  rejected  proposal 153 


LX111 


CONTENTS— Concluded. 

Appendix  No.  2 — Concluded.  page. 

(9)  Illinois,  rejected  proposal 156 

(10)  Combination  of  Wisconsin  and  Illinois  plans 157 

Appendix  No.  3.  Text  of  Public  Policy  Questions  in  Illinois 

on  the  Initiative  and  Referendum 159 

Appendix  No.  4.  Illinois  Public  Policy  Law 161 

Appendix  No.  5.  Text  of  California  Recall  Provisions 162 


I.  SUMMARY. 


This  pamphlet  deals  with  the  initiative  and  referendum,  with  the 
recall  of  judicial  decisions  and  the  recall  of  public  officers. 
The  recall  of  public  officers  is  an  institution  quite  distinct 
in  purpose  from  the  initiative  and  the  referendum,  but  the 
recall  has  normally  been  discussed  in  connection  with  the 
initiative  and  referendum,  and  it  may  properly  be  treated  here,  because 
it  involves  the  same  problems  of  petition  and  popular  vote  that  are 
involved  in  the  initiative  and  referendum.  The  recall  of  judicial 
decisions  is  really  another  application  of  the  referendum,  and  is  prop- 
erly dealt  with  in  connection  with  the  initiative  and  the  referendum. 

The  recall  of  public  officers  is  of  course  another  means  of  re- 
moving such  officers,  and  bears  a close  relation  to  the  problems  of 
local  government,  and  also  to  the  problems  of  the  executive  de- 
partment. 

The  initiative  and  referendum  in  most  states  are  applied  to 
local  as  well  as  to  state  issues,  and  in  some  states  they  are  applied 
by  statute  to  local  matters  while  not  applicable  to  state  issues. 
However,  this  pamphelt  deals  with  them  primarily  with  respect  to 
state  issues,  although  a larger  part  of  what  is  said  about  them  with 
respect  to  state  issues  may  be  also  properly  applied  to  their  use 
for  local  purposes. 

The  discussion  of  the  initiative  and  referendum  contained  in 
this  pamphlet  is  based  upon  a large  mass  of  material  which  can  not 
be  given  in  the  pamphlet  itself.  A complete  table  has  been  pre- 
pared of  all  measures  submitted  to  a popular  vote  in  the  states 
under  the  initiative  and  referendum,  and  this  manuscript  table  will 
be  available  for  use  by  members  of  the  convention  who  desire  to 
analyze  the  votes  for  themselves.  A manuscript  summary  has  also 
been  made  of  all  statutes  carrying  into  effect  the  initiative  and 
referendum,  and  abstracts  have  been  made  of  all  cases  involving 
the  initiative  and  referendum  provisions  of  the  several  constitu- 
tions. 


The  problems  dealt  with  in  this  pamphlet  bear  a close  relation 
to  those  discussed  in  a succeeding  pamphlet  on  constitutional 
amendment  and  revision,  and  some  further  discussion  of  the  popu- 
lar initiative  as  applied  to  constitutional  amendments  will  be  found 
in  that  pamphlet. 

Public  policy  questions  upon  the  adoption  of  state-wide 
local  initiative  and  referendum  have  been  submitted  to  the  vote 
of  Illinois  in  1902,  1904  and  1910,  and  two  questions  upon  the 
iative  and  referendum  are  to  be  submitted  at  the  election  of 
vember  4,  1919.  The  state-wide  questions  submitted  in  1902 


e o? 
ote 


66 


1910  are  substantially  identical.  Upon  the  questions  submitted 
at  elections,  the  initiative  and  referendum  have  in  each  case  re- 
ceived a majority  of  the  votes  cast  upon  the  question,  although 
this  has  in  no  case  constituted  a majority  of  the  votes  cast  in  the 
election.  The  votes  upon  these  measures  will  be  found  upon  page 
71  of  this  pamphlet. 

This  pamphlet  limits  itself  to  an  analysis  of  initiative  and  refer- 
endum provisions,  and  to  statements  regarding  the  general  operation 
of  these  institutions,  without  entering  into  the  controversial  field  with 
respect  to  their  application  in  particular  cases.  For  example,  the  use 
of  the  referendum  to  hold  up  appropriations  for  the  University  of 
Oregon  has  been  referred  to  (p.  91)  only  to  indicate  its  influence  in 
causing  other  states  to  exempt  such  appropriations  from  the  refer- 
endum ; frauds  in  the  preparation  of  petitions  have  been  referred  to 
(p.  96)  only  in  so  far  as  they  have  led  to  legal  enactments  seeking  to 
prevent  such  frauds;  misleading  ballot  titles  have  been  referred  to 
(p.  97)  only  in  connection  with  efforts  to  prevent  abuse  in  this  respect; 
the  use  of  the  referendum  merely  for  the  purpose  of  delaying  the 
coming  into  effect  of  an  act  has  been  commented  upon  (pp.  90,  113- 
114)  only  so  far  as  it  bears  upon  efforts  to  remedy  this  abuse.  The 
submission  and  adoption  of  conflicting  measures  (pp.  86-88,  112)  has 
been  dealt  with  only  in  its  bearing  upon  the  machinery  of  popular 
voting.  Information  is  being  collected  upon  the  specific  cases  in 
which  the  use  of  the  initiative  and  referendum  has  been  more  particu- 
larly subject  to  criticism,  and  much  of  the  popular  discussion  of  these 
institutions  has  centered  about  such  cases;  but  discussion  of  these 
cases  of  abuse  or  alleged  abuse  involves  facts  which  are  in  many  cases 
capable  of  being  interpreted  either  way,  according  to  the  point  of 
view  of  the  individual,  and  such  discussion  is  out  of  place  in  a pamph- 
let seeking  to  make  an  impartial  analysis  of  the  institutions. 


67 


II.  DEFINITIONS  AND  TYPES. 


The  Initiative : The  initiative  is  a means  of  popular  proposal 

of  legislation.  It  is  true,  of  course,  that  any  person  may  under 
present  conditions,  obtain  the  introduction  of  a measure  into  a 
state  legislature,  but  the  popular  initiative  contemplates  not  merely 
the  introduction  of  a measure,  but  also  the  necessity  that  that 
measure  be  considered  by  the  legislature,  or  be  voted  upon  directly 
oy  the  people.  The  direct  initiative  is  an  initiative  which  proposes 
a matter,  and  forces  a popular  vote  upon  it  without  an  opportunity 
for  action  by  the  representative  legislative  body.  The  indirect 
initiative  on  the  other  hand  contemplates  that  the  regular  legisla- 
tive body  should  first  have  an  opportunity  to  act  before  a popular 
vote  is  to  be  taken  upon  the  measure  initiated  by  popular  action. 

An  illustration  of  indirect  initiative  may  be  found  in  the  Com- 
mission Government  Act  of  the  State  of  Illinois.1 

By  this  section  of  the  Illinois  statutes  any  proposed  ordinance 
may  be  submitted  to  the  council  by  a petition  of  the  electors  of  the 
city  or  village.  If  the  petition  is  signed  by  electors  equal  to  25  per 
cent  of  the  votes  cast  for  all  candidates  for  mayor  at  the  last  pre- 
ceding general  election  and  contains  a request  that  the  ordinance 
be  submitted  to  the  people  if  not  passed  by  the  council,  the  council 
must  either  pass  the  ordinance  within  30  days  or  call  a special  elec- 
tion unless  a general  election  is  to  take  place  at  which  the  ordi- 
nance may  be  submitted  within  90  days  thereafter.  If  the  petition 
is  signed  by  not  less  than  10  per  cent  of  the  electors  the  council 
must  either  pass  the  ordinance  without  change  or  submit  it  at  the 
next  general  election.  Another  case  of  indirect  initiative  is  that 
provided  for  by  Article  X,  Section  3 of  the  constitution  of  Illinois, 
under  which  it  is  provided  that  no  territory  shall  be  stricken  from 
any  countv  “unless  a majority  of  the  voters  living  in  such  territory 
shall  petition  for  such  division.”  Probably  the  only  case  of  direct 
initiative  now  existing  in  Illinois  is  that  under  the  public  policy  law 
by  which  a proposal  is  directly  initiated  by  popular  petition  to  be 
voted  upon  at  an  election,  although  the  vote  constitutes  merely  an 
advisory  vote  and  has  no  binding  force. 


Referendum:  By  the  referendum  is  meant,  the  possibility  or 
the  necessity  of  a popular  vote  upon  a measure  before  such  a 
measure  becomes  finally  effective.  The  term  compulsory  referen- 
dum is  applied  to  the  case  in  which  a measure  must  have  popular 


1 Hurd’s  Revised  Statutes,  Ch.  24.  Sec.  193  b 47. 


68 


approval  before  coming-  into  operation.  The  term  optional  refer- 
endum is  applied  to  the  case  in  which  a popular  vote  may  be  re- 
quired but  is  not  essential  to  a measure’s  coming  into  effect.  There 
are  numerous  cases  of  both  the  compulsory  and  the  optional  refer- 
endum in  Illinois. 

Under  the  constitution  of  1870  there  are  a number  of  cases  of 
Compulsory  referendum.  By  Article  XIV  of  the  constitution  no 
constitutional  amendment  nor  other  constitutional  change  may 
come  into  effect  without  a popular  vote,  and  no  constitutional  con- 
vention may  be  held  for  the  recommendation  of  alterations  to  the 
constitution  without  such  a popular  vote.  By  this  constitution 
also  all  banking  legislation  must  be  submitted  to  a popular  vote 
before  it  becomes  effective  (Article  XI,  Section  5),  the  increasing 
of  the  state  debt  beyond  a very  small  amount  must  be  submitted  to 
a popular  vote,  (Article  IV,  Section  18),  and  a popular  vote  is  re- 
quired for  the  sale  of  the  Illinois  and  Michigan  canal  or  of  other 
canals  or  waterways  owned  by  the  state.  The  constitution  also 
requires  that  certain  acts  relating  to  the  city  of  Chicago  be  sub- 
mitted to  a popular  vote  before  becoming  operative  (Article  IV, 
Section  34),  and  there  are  other  requirements  of  lo'cal  referenda 
• with  respect  to  county  debts,  county  seats,  township  organization, 
etc.  In  all  of  these  cases  the  act  to  be  done  requires  a popular 
vote,  and  cannot  be  done  without  a favorable  popular  vote. 

Examples  of  the  optional  referendum  may  be  found  in  numerous 
cases  in  the  present  Illinois  statutes,  for  a large  amount  of  legisla- 
tion with  respect  to  local  affairs  since  1870  has  been  what  is  termed 
local  option  legislation,  that  is,  legislation  which  may  come  into 
effect  in  particular  communities  upon  the  vote  of  those  communi- 
ties. In  the  cases  here  referred  to  the  vote  is  optional,  it  depending 
upon  the  community  itself  as  to  whether  it  shall  or  shall  not  bring 
into  operation  the  requirement  for  such  a vote,  although  if  the  com- 
munity desires  a particular  type  of  legislation,  such  legislation  can 
be  obtained  only  by  a popular  vote,  and  in  this  respect  the  vote  is 
necessary  or  compulsory.  Examples  of  this  may  be  found  with 
respect  to  liquor  legislation,  the  adoption  of  the  commission  form 
of  government,  the  city  civil  service  act  and  the  registration  of 
titles  under  the  Torrens  system. 

The  commission  government  act  of  Illinois  provides  for  a wider 
use  of  what  has  been  termed  an  optional  referendum.  The  Commis- 
sion government  act  provides2  that  no  ordinance  passed  by  the 
council  except  in  certain  cases  shall  go  into  effect  before  30 
days  from  the  time  of  its  final  passage.  During  this  30  days  a 
petition  signed  by  the  electors  equal  to  10  per  cent,  of  the  net  vote 
cast  for  all  candidates  for  mayor  at  the  last  preceding  general  elec- 
tion may  suspend  such  ordinance  and  require  that  the  council  re- 
consider the  ordinance.  If  the  ordinance  is  not  repealed  by  the 
council  it  is  required  to  be  submitted  at  a special  election  to  be 
called  for  that  purpose  or  at  a general  election.  The  ordinance 
does  not  become  operative  unless  a majority  of  the  qualified  electors 


2 Hurd’s  Revised  Statutes,  Ch.  24,  Sec.  193  b 48. 


69 


voting  upon  it  vote  in  favor  thereof.  If  no  petition  is  filed  against 
any  ordinance  the  ordinance  is  in  full  force  and  effect  within  30 
days  after  its  final  passage. 


Relationship  between  initiative  and  referendum : The  defi- 

nitions given  above  indicate  the  close  relationship  between  the 
initiative  and  the  referendum.  The  initiative  either  directly  or  in- 
directly calls  for  a popular  referendum.  If  the  initiative  is  what 
is  termed  a direct  initiative  the  popular  petition  itself  requires  a 
referendum  upon  the  measure  proposed.  If  the  initiative  is  an 
indirect  initiative  the  petition  requires  first  some  legislative  action 
and  then  some  popular  vote,  or  permits  a popular  vote  upon  the 
taking  of  some  further  action.  The  term  initiative  standing  alone 
therefore  means  very  little  with  respect  to  those  institutions. 

The  close  relationship  between  the  initiative  and  the  refer- 
endum is  well  illustrated  by  the  Illinois  public  policy  law  enacted 
in  1901.  Under  this  law  10  per  cent  of  the  voters  of  the  state  may 
require  the  placing  upon  the  ballot  of  a measure  to  be  voted  upon 
by  the  people  of  the  state  at  large ; and  a larger  percentage  may  re- 
quire votes  upon  public  policy  measures  in  subdivisions  of  the 
state.  The  petition  under  the  public  law3  may  perhaps  be  called  an 
initiative,  and  the  popular  vote  upon  such  proposed  question  of  public 
policy  is  properly  termed  a referendum,  although  the  whole  effect  of 
the  two  is  merely  advisory  to  the  legislative  body  with  respect  to  the 
measure  voted  upon,  and  in  this  respect  the  law  may  be  properly 
termed  one  for  an  advisory  initiative. 


Recall  of  Judicial  Decisions  What  is  termed  a recall  of 
judicial  decisions  was  advocated  b^  Ex-president  Roosevelt  in  1912 
and  was  incorporated  in  the  constitution  of  Colorado  in  that  year. 
Under  the  recall  of  judicial  decisions,  as  adopted  into  the  constitu- 
tion of  Colorado,  if  a measure  is  declared  unconstitutional  by  the 
supreme  court  of  that  state,  a popular  petition  may  require  that 
the  law  be  submitted  to  a popular  vote  for  adoption  or  rejection. 
If  a majority  of  the  vote  upon  such  a law  is  in  its  favor,  the  law 
stands  as  a valid  law  independently  of  the  judicial  decision.  Sub- 
stantially what  this  amounts  to  is  a referendum  for  the  purpose  of 
taking  the  particular  law  out  from  under  the  constitution  as  con- 
strued by  the  highest  state  court.  In  effect  it  is  merely  to  this 
extent  an  amendment  of  the  state  constitution. 


Recall  of  public  officers : By  the  recall  of  public  officers  is 

meant  a device  by  which  upon  a petition  the  question  of  continuing 
a particular  officer  may  be  submitted  to  a popular  vote,  that  officer 


3 Hurd's  Revised  Statutes,  Ch.  46,  Sec.  428-429. 


ceasing  to  occupy  the  office  upon  an  adverse  popular  vote.  An  illus- 
tration of  the  recall  of  public  officers  is  to  be  found  in  the  commis- 
sion government  act  of  Illinois.4 

Under  this  act  a petition  signed  by  voters  equal  to  55  per  cent, 
of  the  entire  vote  for  candidates  for  the  office  of  mayor  at  the  last 
preceding  general  election  may  require  a popular  vote  upon  the 
continuance  in  office  of  any  elective  state  officer  except  a judicial 
officer  or  officer  of  a court.  Upon  such  petition  an  election  is  held 
to  determine  whether  the  officer  sought  to  be  recalled  shall  remain 
in  office;  and  also,  if  the  vote  is  opposed  to  his  remaining  in  office, 
to  elect  a successor. 


4 Hurd’s  Revised  Statutes.  Ch.  24,  Secs.  193  b 42  to  193  b 46. 


71 


III.  INSTITUTIONS  IN  ILLINOIS. 


The  statements  made  in  the  preceding  chapter  indicate  in  a 
fairly  satisfactory  manner  the  extent  to  which  the  institutions  of 
the  initiative,  referendum  and  recall  have  been  adopted  in  the 
State  of  Illinois.  A further  discussion  is  desirable,  however,  with 
respect  to  the  operation  of  these  institutions. 


Public  Policy  Law:  The  public  policy  act  of  1901  was  passed 

for  the  purpose  of  permitting  a popular  expression  upon  public 
measures,  without,  however,  such  popular  expression  having  any 
legal  effect.  Under  this  act  state-wide  public  policy  questions  have 
been  submitted  in  the  following  cases : 

Public  Policy  Votes. 


Proposition. 

Vote  for. 

Vote  against. 

Total  vote  on 
proposition. 

Total  vote  at 
election. 

Percentage  of 
affirmative 
vote  to  total 
vote  at  elec- 
tion. 

Percentage  of 
vote  on  propo- 
sition to  total 
vote  at  elec- 
tion. 

1902 

Initiative  and  refer- 
endum   

428,469 

87,654 

516,123 

859,975 

49.82 

60.01 

Local  initiative  and 
referendum  

390,972 

83,377 

474,349 

859,974 

45.46 

55.15 

Direct  Election  U.  S. 
Senators  

451,319 

76,975 

528,294 

859,974 

52.48 

61.43 

1904 

Direct  primary 

590,976 

78,446 

669,422  1,089,458 

54.24 

61.44 

Local  veto  on  local 
legislation  

535,501 

95,420 

630,921  1,089,458 

49.15 

57.91 

Local  control  of  lo- 
cal taxation 

476,783 

140,896 

617,679  1.089,458 

43.76 

56.69 

1910 

Initiative  and  refer- 
endum   

447,908 

128,398 

576,306 

945,711 

47.36 

60.51 

State  civil  service.  . 

411,676 

121,132 

532,808 

945,711 

43.53 

56.29 

Corrupt  practices 
act  

422,437 

122,689 

545,126 

945,711 

44.66 

57.64 

1912 

Tax  amendment  to 
constitution  

541,189 

187,467 

728,656  1,183,584 

45.72- 

61.56 

Pl-imary  law  amend- 
ments . . .. 

524,171 

158,531 

682,702  1,183,584 

44.28 

57.68 

Short  Ballot 

508,780 

165,270 

674,050  1,183,584 

42.90 

56.94 

It  is  probable  that  the  votes  upon  these  public  policy  questions 
have  had  little  influence  upon  state  legislation,  although  in  several 


72 


cases  the  public  policy  votes  have  just  preceded  legislative  action. 
This  is  true  with  respect  to  the  public  policy  vote  in  1904  with 
respect  to  primary  elections ; that  of  1 910  with  respect  to  the  ex- 
tended state  civil  service  law;  and  that  of  1912  with  respect  to  a 
tax  amendment  to  the  constitution.  A proposed  tax  amendment 
to  the  constitution  was  recommended  by  the  general  assembly  to 
the  voters  in  1915,  but  failed  to  receive  the  constitutional  majority 
of  the  popular  vote.  The  local  advisory  referendum  has  also  been 
used  to  some  extent  in  this  state. 


State-wide  Referenda : All  proposed  constitutional  amend- 

ments have,  of  course,  been  submitted  to  a popular  vote  and  all 
amendments  to  banking  .laws.  In  1918  there  were  three  cases  of 
state  wide  referenda : 

(1)  The  one  upon  the  holding  of  a constitutional  convention, 

(2)  the  one  upon  a $60,000,000  bond  issue  for  state  highways, 

and 

(3)  the  one  upon  amendments  to  banking  legislation. 

Since  1870  there  have  been,  in  addition  to  the  advisory  referenda 
referred  to  above,  the  following  state-wide  referenda  in  Illinois  in 
which  the  popular  vote  actually  determined  whether  action  should 
or  should  not  be  taken : 

State-wide  Referenda  other  than  Public  Policy  Votes.1 


eg 

og3£ 

^ a 

o 9 o ® 

Proposition. 

Sh 

o 

0) 

W 

a 

d 

bh 

d 

<D 

o.2 

©.-£ 

og 

> ft 

n ° 

cj  s-i 

2 A 
o.2 

It® 

8r3  ° ^ . 

$G$d 
c ® e 

"IE  o o 2 

® pT  ® 

§555  g 

O O.H  0,2 

o 

+-> 

O 

ft 

o ^ 

& 05  > 

& >*>+> 

> 

> 

Eh 

Eh 

Pi 

Ph 

1877 

Additional  appropri- 

ation for  State- 
house  

80,222 

204,860 

285,082 

389,189 

20.61 

73.25 

1878 

Drainage  amend- 

ment  

295,960 

60,081 

356,041 

448,796 

65.94 

79.33 

1880 

County  officers 

amendment  

321,552 

103,966 

425,518 

622,306 

51.67 

68.37 

1882 

Additional  appro- 

a 

priation  for  state- 
house   

231,632 

163,7915 

395,428 

532,583 

43.49 

74.24 

Cession  Illinois  & 

Michigan  Canal 
to  U.  S 

363,855 

59,675 

423,530 

532,583 

68.31 

79.52 

1884 

Additional  appropri- 

ation for  State- 
house  

364.796 

673,096 

54.03 

1 Constitutional  amendments,  acts  making  appropriations  for  the  statehouse 
and  acts  disposing  of  the  Illinois  and  Michigan  canal  and  canal  lands,  require  a 
majority  of  the  votes  cast  at  the  election  ; acts  providing  for  increases  in  state 
debt  (such  as  that  with  respect  to  the  state-wide  system  of  highways  in  1918) 
require  a majority  of  votes  cast  for  members  of  the  General  Assembly  banking 
legislation  requires  a majority  of  the  vote  thereon. 


73 


State-zvide  Referenda  other  than  Public  Policy  Votes — Concluded. 


Proposition. 

Vote  for. 

Vote  against. 

Total  vote  on 
proposition. 

Total  vote  at 
election. 

Percentage  of 
affirmative 
vote  to  total 
vote  at  elec- 
tion. 

Percentage  of 
vote  on  propo- 
sition to  total 
vote  at  elec^ 
tion. 

1884 

Amendment  — veto 
of  separate  items 
of  appropriation 
bills  

427,821 

60,244 

488,065 

673,096 

63.56 

72.50 

1886 

Amendment  abolish- 
ing’ contract  con- 
vict labor 

306,565 

169,327 

475,892 

574,080 

53.40 

82.89 

1888 

Act  to  amend  the 
banking  laws .... 

380,945 

130,772 

511,717 

748,233 

50.91 

68.39 

1890 

Amendment  author- 
izing Chicago 
bond  issue  for  Co- 
lumbian Exposi- 
tion   

500,299 

55,073 

555,372 

677,817 

* 

73.81 

81.93 

Act  to  amend  bank- 
ing laws 

480,512 

56,737 

537,249 

677,817 

70.89 

79.26 

1892 

Amendment  to 
amending  article. 

84,645 

93,420 

178,065 

871,508 

9.70 

20.43 

1894 

Amendment  to  pro- 
vide for  labor  leg- 
islation   

155,393 

59,558 

214,951 

87*3,426 

17.79 

24.61 

1896 

Amendment  to  arti- 
cle on  amendment 

163,057 

66,519 

229,576 

1,090,869 

14.94 

21.04 

1898 

Act  to  amend  bank- 
ing laws  

124,656 

55,773 

180,429 

878,587 

14.18 

20.53 

1904 

Amendment  provid- 
ing for  special 
legislation  for 

Chicago  

678,393 

94,038 

772.431 

1,089,458 

62.27 

70.90 

1906 

Sale  of  Illinois  and 
Michigan  Canal 
lands  

313,297 

282,980 

596,277 

899,016 

34.84 

66.32 

1908 

Amendment  to  sep- 
arate section  on 
canal  to  author- 
i z e $20,000,000 

bond  issue  

692,522 

195,177 

887,699 

1,169,330 

59.22 

75.91 

Act  to  amend  bank- 
ing law  

473,755 

108,553 

582,308 

1,169,330 

40.51 

49.79 

1916 

Tax  amendment  to 
the  constitution.  . 

656,298 

295,782 

952,080 

1,343,381 

48.85 

70.87 

Amendment  to  the 
general  banking 
law  

421,259 

174,494 

595,753 

1,343,381 

31.35 

44.35 

1918 

For  constitutional 
convention  

562,012 

162,206 

724,218 

975,545 

57.61 

74.23 

State-wide  system 
of  hard  roads .... 

661,815 

154,396 

816,211 

975,545 

67.84 

83.66 

Amendment  to  the 
general  banking 

law  

403.458 

83,704 

487,162 

975,545 

41.35 

49.93 

74 


Referenda  in  Chicago:2  Within  the  City  of  Chicago  a great 
deal  of  use  has  been  made  of  local  referenda  either  by  the  muni- 
cipal council  or  under  state  legislation.  This  use  was  for  a 
while  particularly  active  with  respect  to  the  problem  of  street  rail- 
ways. All  ordinances  authorizing  the  issuance  of  bonds  must  be 
submitted  to  a popular  vote  not  only  in  Chicago,  but  also  in  all 
other  cities  of  the  state  as  well.  Reference  has  already  been  made 
to  the  constitutional  amendment  of  1904  under  which  acts  of  the 
legislature  relating  to  the  government  of  the  city  of  Chicago  must 
be  submitted  to  the  popular  referendum  before  coming  into  effect. 
A table  is  inserted  below  giving  information  about  popular  refer- 
enda in  Chicago  since  1905. 


Chicago  Referenda,  1906-1919. 


Proposition. 


a g 
o 2 

n 

d 2 


n ® O 


O'-;  i 

. a w c 
CgS® 

bo^O-M 


Apr.  Proposed  operation 

3,  of  street  railways 

1906  by  the  city  of  Chi- 
cago   

Proposed  approval 
of  an  ordinance 
making  provision 
for  the  issue  of 
“Street  Railway 
certificates’’  not 
exceeding  $7,500,- 
000 

Public  Policy  Ques- 
tion regarding  mu- 
nicipal ownership 
street  railways.  . . 

Apr.  Approval  of  ordi- 

2,  nance  authorizing 

1907  operation  of  street 

railways  and  pro- 
viding for  pur- 
chase by  city 

Annexation  of  vil- 
lage of  Morgan 
Park  

Sept.  Approval  of  char- 
11.  ter  and  consolida- 
te 07  tion  of  local  gov- 
ernments   

Consenting  to  an 
act  to  amend  the 
municipal  court 
act  

Nov.  Annexation  of  the 

3,  village  of  Morgan 

1908  Park  


121,916  110,323  232,239 

110.225  106,859  217,084 

111,955  108,087  220,042 

167,367  134,281  301,648 

171,961  78,063  250,024 

59,786  121,935  181,721 

91,628  70,696  162,324 

226,647  53,888  280,535 


265,575 

.45 

.87 

265,575 

.41 

.81 

265,575 

.42 

82 

340,247 

.49 

.88 

340,247 

.50 

.73 

195,654 

.30 

.92 

195,654 

.44 

.82 

387,337 

.r,r 

.72 

2 For  city  operation  of  street  railways,  a three-fifths  affirmative  vote  is  re- 
quired ; for  annexations,  an  affirmative  majority  of  those  voting  on  the  question 
in  the  city,  town  or  village  sought  to  be  annexed,  as  well  as  in  Chicago;  other 
propositions  require  an  affirmative  majority  of  the  votes  thereon,  in  the  city 
of  Chicago. 


75 


Chicago  Referenda,  1906-1919. — Continued. 


Proposition. 

Vote  for. 

Vote  against. 

Total  vote  on 
proposition. 

Total  vote  at 
election. 

Percentage  of 
affirmative 
vote  to  total 
vote  at  elec- 
tion. 

Percentage  of 
vote  on  propo 
sition  to  total 
vote  at  elec- 
tion. 

Apr. 

6, 

1909 

Levy  of  tax  for 
public  tuberculosis 
sanitarium  

168,716 

39,237 

207,953 

254,045 

.66  .81 

Annexation  of  city 
of  Evanston  ..... 

132,447 

56,171 

188,618 

254,045 

.52  .74 

Annexation  of  town 
of  Cicero  

133,822 

52,045 

185,867 

254,045 

.52  .73 

Apr. 

5. 

1910 

Annexation  of  the 
village  of  Edison 
Park  

129,852 

95,608 

225,460 

292,363 

.44  .77 

Annexation  of  Oak 
Park  

128,972 

92,095 

222,067 

292,363 

.44  .75 

Annexation  of  the 
village  of  Morgan 
Park  

126,745 

92,282 

219,027 

292,363 

.43  .74 

Nov. 

8, 

1910 

Bonds  for  construc- 
ting a city  hall,  in 
sum  of  $3,500,000. 

139,183 

110,787 

249,970 

331.844 

.41  .75 

Annexation  of  the 
village  of  Edison 
Park  

121,378 

59,647 

181,025 

331.844 

.36  .54 

Annexation  of  the 
village  of  Morgan 
Park  

121,054 

61.034 

182.088 

331.844 

.36  .54 

Apr 

4. 

1911 

$900,000  bond  issue 
for  paying  judg- 
ments against  city 

164.919 

.68,830 

233,749 

370.352 

.44  .63 

$4,655,000  bond  is- 
sue for  construc- 
ting bridges  

211,437 

65,104 

276,541 

370,352 

.57  .74 

Annexation  of  Morr 
gan  Park  

167,588 

64.559 

232.147 

370.352 

.45  .62 

Annexation  of  Ci- 
cero   ' 

168.026 

62,442 

230.468 

370.352 

.45  .62 

Annexation  of  Oak 
Park  *. 

211.802 

82.598 

294,400 

370.352 

.57  .79 

Nov. 

7, 

1911 

Consenting  to  Mu- 
nicipal court  Civil 
Service  Act 

34,592 

76,737 

111,329 

175,302 

.19  .63 

Consenting  to  Mu- 
nicipal court  Prac- 
tice Act  

32,045 

75,939 

107,984 

175,302 

.18  .61 

Bond  issue  for  con- 
s t-r  u c t i o n of 

bridges,  $4,655,000. 

109,673 

33.729 

143.402 

175,302 

.62  .81 

Bond  issue  of  $750,- 
000  for  paying 
judgments  against 
city  

91.268 

43.626 

134,894 

175,302 

.52'  .76 

Apr. 

2. 

1912 

City  bond  issue  for 
acquiring  and  con- 
structing break- 
waters, docks  and 
piers  

141,378 

99,734 

241,112 

294,478 

.48  .81 

76 


Chicago  Referenda,  1906-1919. — Continued. 


Proposition. 


Apr.  City  bond  issue  for 

2,  acquiring  and  im- 
1912  proving  bathing 

beaches  

City  bond  issue  for 
construction  o f 
Contagious  Disease 
Hospital  and  other 
buildings  for 
Health  Department 

City  bond  issue  for 
acquiring  and  con- 
structing buildings 
for  Police  Depart- 
ment   

City  bond  issue  for 
acquiring  and  con- 
structing buildings 
for  Fire  Depart- 
ment   

Nov.  City  bond  issue  of 

3.  $1,750,000  for  im- 

1912  proving  Twelfth 

St 

Apr.  City  bond  issue  for 
1,  corporate  pur- 

1913  poses  

Annexation  of  Ci- 
cero   

Apr.  System  of  subways 
7. 

1914 

Home  rule 

City  bonds  for  Fire 
Department  build- 
ing   

City  bonds  for  Po- 
lice Department 
buildings  

City  bonds  for 
Health  Depart- 
ment  Buildings.  . . 

Judgment  Funding 
bonds  

Bathing  Beach 
bonds  

Consenting  to  Mu- 
nicipal court  Re- 
vision Act  

Four  year  term  for 
city  officers  

Annexation  of  Mor- 
gan Park 

Annexation  of  Ci- 
cero   

Widening  and  im- 
proving  North 
Michigan  Avenue . 


a g 

09 

°.2 

a 

o 

<t-l 

3 

oxi 

ci 

to 

> a 
— < o 

o 

o 

o 

o 

O 

> 

> 

119,371 

115,674 

235.045 

132,959 

102,306 

235,265 

99,733 

126.219 

225,952 

108,589 

113,516 

222,105 

162,264 

136,928 

299,192 

120,512 

115,627 

236,139 

121,260 

* 

118,010 

50,186 

272.401 

171,446 

390,411 

182,335 

172,335 

354,670 

132,310 

248,655 

380.965 

109,132 

265,382 

374,514 

219,978 

160,604 

380,582 

91,013 

260,251 

351,264 

199,015 

173,325 

372,340 

69,145 

132,077 

201,222 

112,263 

242,172 

354,435 

237,567 

128,950 

366,517 

236,863 

125,466 

362,329 

237,018 

154,668 

391,686 

otal  vote  at 
election. 

ercentage  of 
affirmative 
vote  to  total 
vote  at  elec- 
tion. 

ercentage  of 
vote  on  propo- 
sition to  total 
vote  at  elec- 
tion. 

Eh 

Pm 

294,478 

.40 

.79 

294,478 

.45 

.79 

294,478 

.33 

.76 

294,478 

.36 

.75 

415,863 

.39 

.71 

283.224 

.42 

.83 

283,224 

.42 

.60 

490,294 

.24 

.79 

490.294 

.37 

.72 

490,294 

.26 

.77 

490.294 

.22 

.76 

490,294 

.44 

.77 

490,294 

.18 

.71 

490,294 

.40 

.75 

490,294 

.14 

.41 

490,294 

.22 

.72 

490,294 

.48 

.74 

490,294 

.48 

.73 

490,294 

.48 

.79 

Apr.  City  bonds  for  com- 
6,  pleting  the  Munici- 
1915  pal  Contagious  Di- 
sease Hospital,  and 
for  erection  of  cer- 
tain buildings  in 
connection  there- 


with,  $500,000.  . . . 

299,348 

157,476 

456,824 

684,681 

.43 

.66 

City  bonds  for  con- 
structing a dorma- 
tory  in  connection 
with  the  House  of 
Correction,  $60,000 

259,177 

184,679 

443,856 

684,681 

.36 

.64 

City  bonds  for  con- 
structing a House 
of  Shelter  for 
Women,  and  con- 
structing buildings 
for  a farm  colony 
for  House  of  Cor- 
rection, $250,000.. 

252,642 

186,796 

439,438 

684,681 

.36 

.64 

City  bond  issue  for 
construction  of  Mu- 
nicipal Garbage 
Reduction  Works, 

$700,000  262,659  164,462  427,121  684,681  ,38_  ^ .62 

City  bond  issue  for 
acquiring  and  im- 
proving bathing 
beaches,  play- 
grounds  and 
Neighborhood  Cen- 
ters, $600,000 285,752  160,444  446,196  684,681  .41  .65 


City  bond  issue  for 
Fire  Department 


Buildings,  $663,000 

241,869 

188,688 

430,557 

684,681 

.35 

.62 

City  bond  issue  for 
Police  Department 
Buildings,  $1,199,- 
000  

216,161 

200,688 

416,849 

684,681 

.31 

.61 

Annexation  of  Yil- 

lage  of  Clearing.  . 

246,036 

153.122 

399,158 

68  1,681 

.35 

.58 

Annexation  of  Vil- 
lage of  Elmwood 
Park  

233,336 

154,644 

387,980 

68  1,681 

.34 

.56 

Double  Platoon 
System  in  Chicago 
Fire  Department . . 

184,157 

281,759 

465,916 

68  1,681 

.26 

.68 

Annexation  of  City 

of  Blue  Island .... 

246,143 

153,597 

399.740 

68  1.681 

.35 

.58 

Annexation  of  cer- 
tain territory  in 
Section  31,  Town- 
ship 41  ... 

June  Complete 
7,  and  1 ||L 
1915  ili  e the 

$200^P>th  floors  of 
^ Courthouse. 
000  


215,169  164,786 


.360  80.3! 


379,955  684,681 


142,710  200,752 


.31 


.31 


.55 


.71 


62 


Chicago  Referenda, 


Proposition 


Tune  Annexation  of  part 

7,  of  Stickney  

1915 


ntinued. 


96,135  51.576  147,711  200,752 


o» 
6o+j+J 
os  £ o- 
«->  c+j 

pE  o 
& > 

Ph 


4— > 5 

o.2 

4-> 


.47 


o £ o* 

® p,"t!  41 
to  c 

$ O c d 
Sh  ® o ® « 
® +j  2 -m  5 
o o £ o .2 

& > “ >+J 

Pk 


.73 


Apr.  Amendment  to  Mu- 
4,  nicipal  Court  Act.  134,340 
1916 


136,253  270,593  466,394 


.28 


.58 


June  Bridge  Construc- 
5,  tion  bonds  in  sum 
1916  of  $5,100,000 94,606 


Bond  issue  for  ex- 
tension of  street 
lighting  system, 
$3,750,000  


58,038  152,644  179,169  .52 


85 


86,795  65,908  152,703  179,169  .48  85 


Nov.  Bond  issue  for  mu- 
7,  nicipal  garbage  re- 
1916  duction  plant,  etc. 


201,675  297,876  499,551  776,754  .25  .64 


Bond  issue  for  Mu- 
nicipal Bathing 
Beaches,  Play- 
grounds, etc  269,339 


294,177  563,516  776,754  .34 


.72 


Consolidation  of  lo- 
c a 1 governments 
within  city  of  Chi- 
cago   194,792 


311,186  505,978  776,754  .25  .65 


1917 


Apr.  City  bonds  for  pro- 
3,  viding  lake  shore 
protection  im- 
provements, etc. 
new  bathing 
beaches  at  51st  and 
79th  Streets,  $200,- 
000  147,407 


City  bonds  for  con- 
structing  boys 
school  as  branch 
of  House  of  Cor- 
rection, $250,000.. 


City  bonds  for  con- 
structing buildings 
and  providing 
equipment  for  dis- 
posal of  waste, 
$1,000,000  .- 149,110 

City  bonds  for  pub- 
lic comfort  sta- 
tions, $150,000.... 

City  bonds  for  Mu- 
nicipal contagious 
disease  hospital, 


158,872  306,279  425,705  .34 


161,493  144,764  306,257  425,705  .37 


147,595  296,705  425,705  .34 


Nov.  Annexation 
6,  Stickney  ..... 
1917 


of 


Annexation  of  a 
p o r t i on  of  Nor- 
wood Park  


.71 


.71 


.69 


79 


Chicago  Referenda,  1906-1919 — Concluded. 


Proposition 

Vote  for. 

Vote  against. 

Total  vote  on 
proposition. 

Total  vote  at 
election. 

Percentage  of 
affirmative 
vote  to  total 
vote  at  elec- 
tion. 

Percentage  of 
vote  on  propo- 
sition to  total 
vote  at  elec- 
tion. 

Nov. 

6, 

1917 

Consenting  to 
amendment  of  Mu- 
nicipal Court  Act, 
relating  to  service 
of  summons,  prac- 
tice and  proceed- 
ings   

67,031 

55,436 

122,467 

229,672 

.29 

.53 

Amendment  to  Mu- 
nicipal Court  Act. 

64,650 

54,403 

119,053 

229  6 

.28 

.51 

Apr. 

2, 

1918 

Annexation  of  Elm- 
wood Park  

136,777 

60,077 

196,854 

397,555 

.34 

.49 

Annexation  of  a 
portion  of  Nor- 
wood Park 

179,557 

87,484 

267,041 

397,555 

.45 

.67 

Nov. 

5, 

1918 

Approval  of  City 
ordinance  author- 
izing the  Chicago 
Local  Transporta- 
tion Company  to 
construct  a system 
of  local  transporta- 
tion, and'  provid- 
ing for  a subway 
system  

209,682 

243,334 

453,016 

502,511 

.41 

.90 

$3,000,000  bond  is- 
sue for  paying 
judgments  entered 
for  public  benefits 
and  for  widening 
N.  Michigan  Ave- 
nue   

286,834 

132,680 

419,514 

502,511 

.57 

.83 

Apr. 

1, 

1919 

Shall  city  become 
Anti-Saloon  Ter- 
ritory ? 

147,179 

406,190 

553,369 

698,920 

.21 

.79 

City  bond  issue  for 
constructing 
a viaduct  in  East 
and  West  Twelfth 
Street,  $1,200,000. 

305,307 

218,186 

523,493 

698,920 

.43 

.74 

City  bond  issue  for 
payment  of  judg- 
ments against  city 

243,406 

228,916 

472,322 

698,920 

.34 

.67 

80 


IV.  OUTLINE  OF  DEVELOPMENT  OF  THE  INITIATIVE 
AND  REFERENDUM  IN  OTHER  STATES. 


This  outline  deals  primarily  with  the  state-wide  initiative  and 
referendum  although  a large  number  of  the  constitutional  provi- 
sions adopting  the  initiative  and  referendum  have  at  the  same  time 
either  explicitly  provided  for  local  initiative  and  referendum,  or 
have  explicitly  authorized  the  legislatures  to  provide  for  these 
institutions. 

The  referendum  is  a much  older  institution  in  this  country 
than  the  initiative.  Since  the  first  state  constitutions  there  has  been 
a steady  tendency  to  permit  constitutional  changes  only  as  the 
result  of  a popular  vote,  and  Delaware  is  today  the  only  state  whose 
constitution  may  be  amended  without  a referendum.  There  has 
also  been  a tendency  in  constitutional  development  to  specify 
certain  types  of  legislation  as  operative  only  after  a popular  vote 
of  the  state  at  large.  This  is  illustrated  by  the  constitutional  pro- 
visions in  Illinois  that  all  changes  in  banking  legislation  shall  come 
into  effect  only  after  a popular  vote,  and  that  a popular  vote  of  the 
state  is  necessary  for  the  increasing  of  indebtedness  beyond  a cer- 
tain small  amount.  Under  these  constitutional  provisions  a rather 
active  application  of  the  referendum  has  existed  in  this  country  for 
a number  of  years.  Between  1901  and  1908  about  400  constitu- 
tional proposals  were  submitted  in  the  several  states,  and  for  the 
whole  period  between  1901  and  1919  more  than  1500  such  proposals 
were  submitted.  These  proposals  are  ones  which  would  have  re- 
quired a popular  vote,  even  before  the  adoption  of  the  referendum 
in  a number  of  states  for  ordinary  legislation ; although  the  number 
of  proposed  constitutional  amendments  submitted  in  the  several 
states  has  been  somewhat  augmented  by  the  fact  that  in  an  in- 
creasing number  of  states  between  1902  and  1919  a popular  initia- 
tive upon  constitutional  amendments  has ' been  established  in  ad- 
dition to  the  power  of  the  representative  legislative  bodies  to  sub- 
mit such  amendments. 

South  Dakota  in  1898  was  the  first  state  to  adopt  the  initiative 
and  the  referendum.  Since  that  time  nineteen  other  states  have 
adopted  the  initiative  and  referendum  for  state-wide  measures,  or 
have  provided  for  the  application  of  the  principles  of  these  institu- 
tions, and  two  states  (New  Mexico  and  Maryland)  have  adopted 
the  referendum.  Utah  in  1900  adopted  a constitutional  amendment 
authorizing  the  legislature  to  establish  the  initiative  and  refer- 
endum for  ordinary  legislation,  but  no  legislation  was  enacted  for 
this  purpose  until  1917.  Idaho  in  1912  adopted  a constitutional 
amendment  authorizing  the  legislature  of  that  state  to  establish  the 


initiative  and  referendum,  but  up  to  the  present  time  no  legislation 
has  been  enacted  in  Idaho.  Idaho  may,  therefore,  be  excluded 
from  this  list,  and  the  number  of  states  having  the  %state-wide  init- 
iative and  referendum  reduced  to  nineteen.  Maryland  and  New 
Mexico  have  only  the  referendum,  the  other  nineteen  states  having 
both  the  initiative  and  the  referendum  for  state-wide  legislation. 
Of  the  nineteen  states  having  the  initiative  , and  the  referendum, 
five  do  not  apply  the  initiative  to  constitutional  amendments. 

A table  is  presented  below  indicating  the  development  of  the 
state-wide  initiative  and  referendum  in  this  country,  with  somdB 
indication  of  the  character  of  the  initiative  and  referendum  amend-  ^ 
merits  adopted  in  the  states  which  have  amendments  dealing  with 
these  subj  ects : 


State-wide  Initiative  and  Referendum. 


State. 

Date. 

Initiative 

for 

Statutes. 

Initiative 
for  Const. 
Amend- 
ments. 

Referendum. 

Remarks. 

South 

Dakota. 

1898. 

5%  indirect. 

None. 

5%. 

Slightly  restricj 
tive  amend! 
ment  rejected 
1914. 

1 

Utah. 

• 

1900  (direc- 
tory) Law, 
1917. 

5%  indirect. 

10%  direct 
(majority 
of  coun- 
ties) 

None. 

10%. 

(majority  of 
counties) . 

Law  enacted  irl 
1917. 

1 

Oregon. 

Nevada. 

1902 

Extended 

1906. 

Referendum 

1904 

T.  & R.  1912. 

8%  direct. 
10%  indirect. 

8%  direct. 
10%  indirect. 

5%. 

10%. 

Restrictive 
amendment 
rejected  1912. 

Montana. 

1906. 

8%  (%  of 
counties) 
dii’ect. 

None. 

5%  (%  of 
counties) 

- ■ i " 

| 

Oklahoma. 

1907. 

8%  direct. 

15%  direct. 

5%. 

Initiated  mea- 
sures require 
majority  of 
votes  at  elec- 
tion. 

Maine. 

1908. 

12,000  indi- 
rect. 

None. 

10,000. 

Missouri. 

1908. 

8%  (%  con- 
gressional 
districts) 
direct. 

8 % ( % con- 
gressional 
districts) 
direct. 

5%  (%  con- 
gressional 
districts). 

Restrictive 
amendment 
rejected  1914. 

Michigan. 

1908. 

Extended 

1913. 

8%  indirect. 

10%  direct. 

5%. 

Immaterial 
amendment 
adopted  1918. 

Arkansas. 

1910. 

8%  direct. 

8%  direct. 

5%. 

Rejected  con- 
stitution of 
1917  would 
have  restric- 
ted. 

Colorado. 

1910. 

8%  direct. 

8%  direct. 

5%. 

Restrictive 
amendments 
rejected  1914. 

82 


r 


State-wide  Initiative  and  Referendum — Concluded 


Initiative 

for 

Statutes. 

Initiative 

State. 

Date. 

for  Const. 
Amend- 
ments. 

Referendum. 

Remarks. 

California. 


t 


New  Mexico. 


Arizona. 

Idaho. 

braska. 


rashington. 


Mississippi. 


North 

Dakota. 


Maryland. 


Massachu- 

setts. 


\ . 


to 


1911. 


1911. 


1911 

Extended 

1914. 

1912 

directory. 

1912. 


1912 

Extended 

federal 

amend- 

ments, 

1918. 


1912. 


1914. 


1914 
Revised  and 
extended 
1918. 


1915. 


1918. 


8%  direct. 
5%  indirect. 


None. 


10%  direct. 


None. 


10%  (5%  in 
% coun- 
ties) di- 
rect. 

3%  plus  3% 
indirect 
(at  least 
y2  percent- 
age from 
y2  coun- 
ties). 

10%  (not 
over 

50,000)  di- 
rect and 
indirect. 


8%  direct. 


None. 


15%  direct. 


None. 


15%  (5%  in 
% coun- 
ties) direct 


10%  direct 
(at  least 
y2  percent- 
age from 
y2  coun- 
ties). 


None. 


7,500  direct.  7,500  direct. 


10%  (% 
counties). 


5%. 


None. 


10%  (5%  in 

% coun- 
ties). 


10,000  direct. 


None. 


10  plus 
20,000  plus 
5,000.  30% 
vote.  In- 
direct. 


20,000  direct. 


None. 


10  plus 
25,000. 
Two 
sessions. 
30%  vote. 
Indirect. 


6%  (at  least 
y2  percent 
age  from 
y2  coun- 
ties). 


6%  (not 
over 
30,000). 


6,000. 


7,000. 


10,000  (Not 
more  than 
y2  from 
one  county 
or  Balti- 
more.) 

10  plus 

15,000.  10 

plus  10,000 
for  repeal 
of  emerg- 
ency or 
other 
measures. 
30%  vote. 


Restrictive 
amendment 
rejected  1915. 

25%  may  sus- 
pend law.  Ma- 
jority 40% 
vote  at  elec- 
tion to  reject. 

Restrictive 
amendment 
rejected  1916. 

No  law  yet  en- 
acted. 

Affirmative  vote 
of  35%. 


Restrictive 
amendment 
rejected  1915. 


Total  vote  must 
equal  y3  at 
election. 


Proposal  sub- 
mitted and 
failed  1912. 

30,000  may  re- 
quire special 
election  on 
emergency 
referred  law. 

Referendum 

only. 


Expressly  inap- 
plicable to 
numerous 
subjects.  Not 
over  % sig- 
natures from 
one  county. 


In  all  of  the  states  except  Utah  and  Idaho,  and  perhaps  South 
Dakota,  the  constitutional  amendments  with  respect  to  the  initia- 
tive and  the  referendum  have  been  self-executing,  but  have  pro- 
vided that  legislation  should  or  might  be  enacted  to  carry  them  into 
operation.  The  amendments  adopted  have  in  some  cases  been 
general  in  form  and  have  left  a large  amount  of  detail  to  be  covered 


83 


by  statutes.  Others  have  dealt  with  matters  in  detail  themselves 
and  have  left  a less  amount  of  detail  to  statutory  regulation.  How- 
ever, in  all  but  two  or  three  of  these  states,  legislation  has  been 
enacted  supplementing  the  constitutional  provisions,  and  it  is  neces- 
sary in  many  cases  to  have  this  legislation  in  mind  in  discussing 
the  operation  of  the  constitutional  provisions. 

In  addition  to  the  establishment  of  the  initiative  and  referen- 
dum by  constitutional  provisions,  these  provisions  themselves  have 
in  a number  of  cases  expressly  authorized  the  establishment  of  the 
local  initiative  and  referendum,  or  have  themselves  established  such  in- 
stitutions. In  states  not  having  constitutional  provisions,  there  have 
been  a number  of  statutory  provisions  adopted  for  the  local  initia- 
tive and  referendum,  most  frequently  in  connection  with  commis- 
sion government  legislation  for  cities. 


84 


V.  DETAILED  ANALYSIS  OF  THE  INITIATIVE  AND 
REFERENDUM. 


This  analysis  deals  primarily  with  the  constitutional  provisions 
of  the  twenty-two  states  which  have  such  provisions,  and  pri- 
marily also  with  the  state-wide  initiative  and  referendum  for  these 
states,  although  statutory  provisions  are  discussed  where  they  are 
important,  and  some  reference  is  made  to  judicial  decisions  throw- 
ing light  upon  the  interpretation  of  the  constitutional  provisions. 


Types  of  the  Initiative:  Of  the  nineteen  states  having  a popu- 

lar initiative  in  operation  ten  have  a direct  initiative.1 

That  is,  in  ten  of  the  states  a measure  is  proposed  by  popular 
petition,  and  then  goes  directly  to  a vote  of  the  peole  as  a result 
of  such  proposal. 

Nine  states  have  some  form  of  what  may  be  termed  an  in- 
direct initiative,  although  these  states  must  be  divided  into  several 
classes : 

(a)  South  Dakota  adopted  the  first  constitutional  amendment 
in  this  country  for  the  initiative  and  referendum,  and  under  the 
South  Dakota  amendment  a popular  petition  proposes  a measure 
which  the  “legislature  shall  enact  and  submit.”  The  only  function 
of  the  legislature  in  the  South  Dakota  indirect  initiative  is  that  of 
adopting  the  proposal  of  the  people  and  of  submitting  it  in  the 
form  in  which  it  was  proposed.  The  function  of  the  legislature  is 
mandatory  (although  there  is  of  course  no  judicial  means  of  en- 
forcing its  performance),  and  the  legislative  act  of  adoption  is  a 
matter  of  pure  surplusage  which  has  no  bearing  in  any  way  upon 
the  actual  operation  of  the  initiative. 

(b)  Maine  (1908),  Nevada  (1912),  and  Michigan  (1913)  have 
an  indirect  initiative  under  which  measures  proposed  by  petition 
(but  not  constitutional  amendments  in  Michigan)  must  be  sub- 
mitted to  the  legislature.  However,  in  these  three  states  the  legis- 
lative function  is  that  of  accepting  or  rejecting  without  change  the 
measure  as  it  is  proposed,  although  in  these  states  the  legislature 
has  authority  to  submit  competing  or  substitute  proposals  with 
the  recommendation  that  such  proposals  be  adopted  by  the  voters. 

(c)  In  three  states  a choice  is  given  of  either  direct  or  indirect 
initiative.  In  Washington  (1912)  a measure  initiated  by  petition 
goes  to  the  legislature  if  the  petition  is  submitted  not  less  than  ten  days 
before  the  legislative  session.  If  the  petition  is  submitted  not  less  than 
four  months  before  an  election,  the  measure  goes  directly  to  the 
popular  vote  at  the  election.  Under  the  1917  statute  of  Utah  a 5 per 

1 Oregon,  Montana,  Oklahoma,  Missouri,  Arkansas,  Colorado,  Arizona,  Ne- 
braska, Mississippi,  North  Dakota. 


85 


cent  petition  may  initiate  a proposed  measure  in  the  legislature,  but  A 
10  per  cent  petition  is  required  to  initiate  a measure  for  submission 
directly  to  popular  vote.  Under  the  Utah  legislation  if  a measure 
initiated  in  the  legislature  by  a 5 per  cent  petition  is  not  enacted  without 
change  by  the  legislature,  a further  5 per  cent  petition  is  necessary  to 
require  submission  to  a popular  vote.  In  California  (1911)  a measure 
may  be  initiated  directly  to  the  voters  by  an  8 per  cent  petition.  A 
measure  may  be  initiated  in  the  legislature  by  a 5 per  cent  petition. 
If  a measure  is  initiated  in  the  legislature  by  a 5 per  cent  petition  it 
must  be  passed  or  rejected  as  presented;  and  if  rejected  it  goes  to 
a popular  vote,  with  power  in  the  legislature  to  submit  a competing 
or  substitute  proposal,  as  in  the  states  of  Maine,  Nevada  and  Michi- 
gan, commented  upon  above. 

(d)  Ohio  (1912)  provides  for  an  indirect  initiative  with  respect 
to  laws,  and  Massachusetts  (1918)  provides  for  an  indirect  initiative 
both  as  to  laws  and  constitutional  amendments.  Under  the  Ohio 
constitutional  amendment  of  1912  a 3 per  cent  petition  may  present 
the  text  of  a measure  to  the  legislature.  If  the  measure  is  not  passed, 
or  is  passed  in  an  amended  form  or  no  action  is  taken  within  four 
months,  an  additional  3 per  cent  petition  may  require  the  submission 
of  the  measure  either  in  its  original  form  or  with  amendments  pro- 
posed by  either  or  both  houses.  The  Massachusetts  constitutional 
amendment  of  1918  for  the  indirect  initiation  of  both  laws  and  con- 
stitutional amendments  is  the  most  complex  initiative  and  referendum 
provision  yet  adopted  by  any  state.  The  Massachusetts  amendment 
contains  a number  of  limitations  upon  the  use  of  the  initiative.  Ten 
petitioners  first  present  a proposed  measure  to  the  Attorney  General 
who  makes  a certification  (if  he  so  finds)  that  the  proposal  is  not  in 
contravention  of  any  of  the  limitations  upon  the  use  of  the  initiative. 
A petition  of  20,000  voters  may  then  present  the  measure  to  the  general 
court.  A majority  of  the  first  ten  petitioners  may  make  corrections 
in  the  proposed  law  subject  to  the  approval  of  the  Attorney  General 
and  then  an  additional  petition  of  5,000  voters  may  require  the  sub- 
mission of  the  measure  to  a popular  vote.  The  steps  upon  an  initiated 
constitutional  amendment  are  still  more  complex. 

(e)  Wisconsin  and  Illinois  proposals:  A proposed  constitutional 
amendment  rejected  in  Wisconsin  in  1914  and  a proposed  amendment 
presented  to  the  Illinois  General  Assembly  in  1911  and  1913,  but  not 
submitted  to  the  people,  contain  certain  points  of  importance  in  con- 
nection with  the  possible  use  of  the  indirect  initiative.  Under  the 
Wisconsin  plan  it  is  assumed  that  if  any  appreciable  number  of  the 
people  of  the  state  wish  to  do  so  they  may  obtain  the  introduction  of 
a measure  in  the  legislature.  The  measure  being  introduced  in  the 
legislature  in  the  ordinary  way,  without  the  pressure  of  an  initiative 
petition,  a petition  of  8 per  cent  of  the  qualified  voters  may  then 
require  the  submission  to  the  people  of  such  a proposed  law,  either 
in  the  form  in  which  it  was  originally  introduced  or  with  any  amend- 
ments thereto  which  may  have  been  proposed  in  the  legislature. 

Under  the  proposed  Illinois  plan,  an  8 per  cent  popular  petition 
might  initiate  a matter  in  the  legislature,  and  unless  the  measure 


86 


so  initiated  were  enacted  without  change,  it  was  to  be  submitted  to 
the  people  at  the  next  general  election,  unless  it  should  be  placed  upon 
passage  and  fail  to  receive  the  affirmative  vote  of  at  least  one-fourth 
cf  the  members  elected  to  each  house. 

A possible  combination  of  the  Wisconsin  and  Illinois  plans  might 
proceed  upon  the  assumption  that  any  desired  measure  can  be  intro- 
duced into  the  legislature  under  the  present  legislative  machinery,  and 
this  assumption  is  probably  a correct  one.  The  measure  once  intro- 
duced, a popular  petition  could  then  require  the  submission  of  the 
measure  together  with  any  amendments  made  in  either  or  both  houses 
of  the  legislature,  provided  the  measure  received  the  affirmative  vote 
of  at  least  one-fourth  of  the  members  elected  to  each  house. 


Draftsmanship:  The  indirect  initiative  has  been  adopted  pri- 

marily for  the  purpose  of  obtaining  or  seeking  to  obtain  a more 
thorough  consideration  of  a measure  before  it  is  submitted  to  a pop- 
ular vote.  The  indirect  initiative  in  Ohio  and  Massachusetts  actually 
provides  for  the  amendment  of  the  measure  after  it  has  been  once 
submitted  by  petition,  and  a similar  result  would  be  obtained  by  the 
Wisconsin  plan,  or  by  the  combination  of  the  Wisconsin-Illinois  plans, 
referred  to  above. 

Statutes  in  two  states  seek  to  provide  for  something  of  drafting 
advice.  In  Ohio  two  or  more  qualified  electors  may  submit  a pro- 
posed law  or  constitutional  amendment  to  the  Legislative  Reference 
Department  for  examination,  and  that  department  is  required  to 
certify  as  to  the  correctness  of  the  form  of  the  proposed  measure. 
In  Washington  the  Attorney  General  is  required  when  requested  by 
any  voters  to  advise  as  to  the  form  and  phraseology  of  an  initiative 
or  referendum  petition. 


Conflicting  or  Competing  Measures:  The  discussion  above  of 

the  different  types  of  the  initiative  indicates  the  possibility  of  com- 
peting or  conflicting  measures.  Competing  measures  are  expressly 
authorized  in  the  states  which  provide  that  a measure  shall  be  sub- 
mitted to  the  legislature  and  enacted  or  rejected  without  change, 
but  that  the  legislature  may  submit  competing  or  substitute  measures, 
(Maine,  Nevada,  Michigan).  The  provisions  for  indirect  initiative 
in  Washington  also  expressly  contemplate  competing  measures. 
Massachusetts  also  has  provisions  as  to  competing  and  conflicting 
measures.  Possibilities  of  conflict  are  expressly  recognized  by  the 
constitutional  provisions  of  Nevada,  California,  Arizona,  Nebraska, 
Ohio  and  North  Dakota,  and  by  statutory  provisions  in  Oregon, 
Oklahoma,  Arkansas  and  Colorado. 

In  Washington  it  is  expressly  provided  by  the  constitution  that 
in  the  case  of  two  expressly  competing  measures  “when  conflicting 
measures  are  submitted  to  the  people  the  ballot  shall  be  so  printed 


87 


that  c roter  can  express  separately  bv  making  one  cross  (X)  for 
each  two  preferences,  first  as  between  either  measure  and  neither,  and 
secondly,  as  between  one  and  the  other.  If  the  majority  of  those 
voting  on  the  first  issue  is  for  neither,  both  fail,  but  in  that  case  the 
votes  on  the  second  issue  shall  nevertheless  be  carefully  counted  and 
made  public.  If  a majority  voting  on  the  first  issue  is  for  either, 
then  the  measure  receiving  a majority  of  the  votes  on  the  second 
issue  shall  be  law.”  In  Oklahoma  provision  is  made  by  statute  that 
if  competing  measures  are  submitted  and  neither  has  a favorable 
vote,  one  shall  be  resubmitted  if  it  receives  one-third  of  the  vote. 
In  case  of  conflict  the  highest  vote  controls.  Maine  in  expressly  pro- 
viding for  competing  measures  requires  that  they  be  submitted  in  su~h 
manner  that  either  may  be  chosen  or  both  rejected.  If  both  are 
rejected,  but  one  receives  more  than  one-third  of  the  votes  for  and 
against  both,  it  is  to  be  submitted  again.  The  Massachusetts  con- 
stitutional amendment  of  1918  provides  “for  grouping  and  designating 
upon  the  ballot  as  conflicting  measures  or  as  alternative  measures, 
only  one  of  which  is  to  be  adopted,  any  two  or  more  proposed  con- 
stitutional amendments  or  laws  which  have  been  or  may  be  passed 
or  qualified  for  submission  to  the  people  at  any  one  election ; pro- 
vided that  a proposed  constitutional  amendment  and  a proposed  law 
shall  not  be  so  grouped,  and  that  the  ballot  shall  afford  an  opportunity 
to  the  voter  to  vote  for  each  of  the  measures  or  for  only  one  of  the 
measures,  as  may  be  provided  in  said  resolution,  or  against  each  of  the 
measures  so  grouped  as  conflicting  or  as  alternative.  In  case  more 
than  one  of  the  measures  so  grouped  shall  receive  the  vote  required 
for  its  approval  as  herein  provided,  only  that  one  for  which  the  larg- 
est affirmative  vote  was  cast  shall  be  deemed  to  be  approved.” 

As  indicated  above,  there  are  a number  of  states  in  which  there 
may  be  expressly  competing  proposals,  that  is,  proposals  only  one 
of  which  is  intended  to  be  adopted.  In  this  case,  of  course,  the  voter 
has  merely  the  question  of  choice  as  between  two  measures,  and  the 
ballot  should  be  so -arranged  (although  provision  is  not  always  so 
made)  for  the  voting  upon  the  two  measures  in  the  alternative. 
Some  of  the  states  in  which  alternative  measures  may  be  submitted 
merely  provide  as  does  Michigan  that  the  measure  receiving  the 
highest  affirmative  vote  shall  prevail. 

The  question  of  conflict  among  measures  voted  upon  by  the 
people  is  not  merely  one,  however,  of  a possible  conflict  between 
measures  which  are  in  form  alternative  measures.  In  states  which 
have  no  provisions  for  possible  alternative  proposals,  proposals  may 
be  submitted  which  are  actually  alternative.  This  was  the  case  of 
the  Oregon  proposals  with  respect  to  fisheries  in  1908,  the  adoption 
of  both  of  which  actually  prevented  any  fishing  at  all  in  the  matter 
sought  to  be  legislated  upon  through  laws  submitted  by  popular 
initiative.  It  may  often  be,  also,  that  measures  are  submitted  upon 
the  same  matter  which  actually  conflict  with  each  other,  either  in 
whole  or  in  part,  and  it  is  to  meet  this  situation  that  legislation  has 
been  enacted  in  Oregon  providing  that  to  the  extent  of  such  conflict 
the  measure  obtaining  the  highest  vote  shall  control.  Similar  legis- 


88 


lation  has  been  enacted  in  Oklahoma,  Arkansas  and  Colorado,  and 
provisions  of  much  the  same  character  exist  in  California,  Arizona. 
Nebraska,  Ohio,  North  Dakota,  Massachusetts  and  Mississippi.  Utah 
has  a statutory  provision  that  in  case  of  conflict,  the  governor  shall 
proclaim  the  measure  receiving  the  greatest  number  of  votes,  but 
provides  an  appeal  to  the  Supreme  Court  as  to  whether  there  is  a 
conflict. 

An  interesting  illustration  of  the  possibility  of  conflict  in  meas- 
ures independently  submitted  was  that  with  respect  to  two  constitu- 
tional amendments  in  Ohio  in  1918.  A proposed  initiative  amendment 
provided  for  the  classification  of  property  for  taxation,  and  a pro- 
posed legislative  amendment  for  the  narrower  matter  of  avoiding 
double  taxation  on  real  estate.  The  legislative  amendment,  having 
received  the  larger  affirmative  vote,  destroyed  the  broader  initiative 
amendment  which  necessarily  dealt  with  the  same  section  of  the 
constitution. 


Emergency  Measures  under  the  Referendum:  The  referen- 

dum is  in  substantially  all  of  the  states  applicable  to  any  item, 
section  or  part  of  any  act  as  well  as  to  complete  acts,  and  this  com- 
plicates to  some  extent  the  possibility  of  popular  action  upon  measures, 
although  there  is  likely  to  be  little  attempt  to  use  the  referendum 
merely  upon  parts  of  measures  other  than  appropriation  measures ; 
and  if  the  referendum  is  made  applicable  to  appropriation  measures, 
particular  items  are  ordinarily  separable  from  the  remainder  of  the 
act. 

The  general  plan  for  the  application  of  the  referendum  is  that 
of  providing  that  laws  enacted  by  the  legislature  shall  not  come  into 
effect  until  a certain  time  after  the  legislative  adjournment.  In  this 
interval  referendum  petitions  may  be  filed,  and  the  effect  of  such 
petition  is  in  most  states  to  suspend  the  act  until  a popular  vote  is 
had.  The  most  difficult  problem  with  respect  to  the  application  of  the 
referendum”  has  been  that  regarding  measures  for  which  there  is  some 
necessity  of  obtaining  immediate  application,  without  the  possibility 
of  suspending  the  legislation  and  waiting  for  the  possible  filing  of  a 
referendum  petition  and  a popular  vote.  So-called  emergency  measures 
have  constituted  one  of  the  most  serious  problems  in  the  framing  of 
referendum  provisions  of  constitutions.  The  South  Dakota  consti- 
tutional provision  which  came  first  in  this  country  merely  provided 
that  the  referendum  should  not  apply  to  “such  laws  as  may  be  necessary 
for  the  immediate  preservation  of  the  public  peace,  health  or  safety, 
support  of  the  state  government,  and  its  existing  public  institutions.”  In 
a number  of  states  this  rather  simple  form  has  been  followed  with  re- 
spect to  measures  which  might  be  regraded  as  immediately  necessary. 
Oregon  in  1902  provided  that  the  referendum  might  be  employed  for 
all  laws  “except  as  to  laws  necessary  for  the  immediate  preservation 
of  the  public  peace,  health  or  safety”  but  thought  it  desiiable  in  1912 
to  add  a provision  that  “the  legislative  assembly  shall  not  declare 


89 


an  emergency  in  any  act  regulating  taxation  or  exemption.”  Montana 
exempts  laws  “necessary  for  the  immediate  preservation  of  the  pub- 
lic peace,  health  or  safety,”  but  provides  that  laws  shall  remain  in 
force  until  after  they  are  voted  upon  by  the  people  unless  15  per  cent 
of  the  voters  sign  the  petition,  whereas  5 per  cent  is  sufficient  for  the 
ordinary  referendum.  Missouri,  in  1908,  exempts  from  the  refer- 
endum laws  necessary  for  the  immediate  preservation  of  the  public 
peace,  health  or  safety,  and  also  laws  making  appropriations  for  cur- 
rent expenses  of  state  government,  for  the  maintenance  of  state 
institutions  and  for  the  support  of  public  schools ; and  similar  pro- 
visions may  be  found  in  Michigan,  Colorado  and  Washington. 
Arkansas  (1912)  merely  excepts  from  the  referendum  laws  necessary 
for  the  immediate  public  peace,  health  or  safety.  There  has  been, 
however,  a definite  tendency  to  tighten  the  restrictions  upon  the 
legislature  with  respect  to  emergency  measures  which  may  become 
effective  without  the  possibility  of  a popular  vote.  In  Oklahoma; 
Maine,  California,  Mississippi  and  Maryland  the  constitutional  pro- 
visions enumerate  types  of  measures  which  may  not  be  made  emerg- 
ency measures  and  so  taken  out  from  under  the  control  of  the  initia- 
tive and  referendum.  The  Oklahoma  provision  is  that  an  emergency 
measure  “shall  not  include  the  granting  of  franchises  or  licenses 
to  a corporation  or  individual,  to  extend  longer  than  one  year,  nor 
provision  for  the  purchase  or  sale  of  real  estate,  nor  the  renting  or 
encumbrance  of  real  property  for  a longer  term  than  one  year.” 
North  Dakota  in  1918  adopted  a somewhat  similar  limitation.  In 
Maine  the  constitution  provides  that  emergency  measures  shall  not 
include  an  infringement  of  the  right  of  home  rule  for  municipalities, 
a franchise  or  a license  to  a corporation  or  an  individual  to  extend 
longer  than  one  year,  or  provision  for  the  sale  or  purchase  or  renting 
for  more  than  five  years  of  real  estate.  . Matters  of  special  privilege 
and  relating  to  the  creation  or  abolition  of  offices  may  not  be  emer- 
gency measures  exempt  from  referendum  in  California,  Mississippi 
and  Maryland. 

To  limitations  upon  the  types  of  measures  with  respect  to  which 
emergencies  may  be  declared,  there  has  been  a tendency  to  add  pro- 
visions requiring  special  majorities  in  the  legislature  for  the  declara- 
tion of  such  emergencies.  In  some  cases  the  emergencies  are  merely 
to  be  declared  by  separate  vote,  but  in  others  an  exceptional  legislative 
majority  is  required.  For  example,  Maine  requires  a two-thirds  vote; 
Maryland  a three-fifths  vote;  Mississippi  a three-fourths  vote;  Utah 
by  statute  a two-thirds  vote ; Ohio  a two-thirds  vote ; Arizona  a 
two-thirds  vote  with  the ' Governor’s  approval,  or  a ‘three-fourths 
vote  in  case  he  disapproves.  Oklahoma  requires  a two-thirds  vote  of 
all  the  members  elected  to  each  house,  and  if  the  emergency  measure 
is  vetoed,  a three-fourths  vote  for  passage  over  such  veto.  Massa- 
chusets  in  1918  adopted  rather  elaborate  provisions  limiting  emer- 
gency laws.  The  law  must  contain  a preamble  setting  forth  the  facts 
constituting  the  emergency  and  that  the  law  is  necessary  for  the  im- 
mediate preservation  of  the  public  peace,  health,  safety  or  convenience. 
A separate  vote  is  required  upon  such  preamble,  with  approval  by 


90 


two-thirds  of  the  members  of  each  house  voting  thereon.  However, 
an  emergency  measure  may  also  be  created  by  the  governor’s  filing 
with  the  secretary  of  the  commonwealth  a declaration  that  in  his 
opinion  the  act  should  take  effect  forthwith.  No  grant  of  any  fran- 
chise or  amendment  thereto  or  renewal  or  extension  thereof  for 
more  than  one  year  may  be  declared  an  emergency  measure  either  by 
the  governor  or  by  the  general  court. 

In  the  application  of  the  referendum  there  seems  some  tendency 
to  apply  the  principle  that  a law  shall  not  be  suspended  by  a referen- 
dum petition  but  shall  remain  in  effect  until  voted  upon  by  the  people, 
an  adverse  popular  action  serving  then  as  a repeal.  Under  the  Nevada 
constitutional  provision  of  1905,  apparently  every  measure  remains 
m force  until  it  is  voted  upon  by  the  people,  and  then  is  repealed  by 
an  adverse  vote.  The  Montana  constitutional  amendment  of  1906 
does  not  suspend  a law  on  the  basis  of  a referendum  petition  unless 
the  petition  is  signed  by  15  per  cent  of  the  voters,  5 per  cent  being 
sufficient  to  demand  a referendum.  The  New  Mexico  constitution 
provides  for  the  repeal  of  a law  by  popular  vote  upon  a 10  per  cent 
petition,  with  a 25  per  cent  petition  to  suspend  the  law  if  this  is  de- 
sired until  the  vote  takes  place.  The  North  Dakota  constitutional 
amendment  of  1918  requires  a two-thirds  vote  for  passing  emergency 
laws,  and  provides  that  either  the  governor  or  30,000  petitioners  may 
require  a special  election  upon  such  laws.  Massachusetts  provides 
for  the  repeal  of  an  emergency  or  other  law  on  referendum  petition. 

To  permit  all  laws  to  come  into  effect  as  the  result  of  legislative 
action  would,  of  course,  avoid  the  suspension  of  such  laws  by  virtue 
of  a referendum  petition  and  at  the  same  time  avoid  the  necessity  of 
distinguishing  between  emergency  and  other  laws.  An  adverse  popu- 
lar vote  could  then  serve  to  repeal  the  law,  irrespective  of  its  emer- 
gency character.  The  use  of  the  referendum  to  repeal  emergency 
laws  is  now  provided  for  by  Nebraska,  Mississippi,  North  Dakota 
and  Massachusetts. 

The  constitutional  provisions  that  emergency  measures  shall  go  into 
immediate  effect  and  not  be  subject  to  a referendum  necessarily  com- 
mit to  the  legislatures  in  the  first  place  the  determination  of  what  con- 
stitute emergency  measures,  whether  that  determination  is  required 
to  be  by  an  extraordinary  legislative  vote  or  not.  The  determination 
by  the  legislature  that  an  emergency  exists  has  been  held  to  conclude 
the  matter  by  the  courts  of  Oregon,2  Arkansas,3  Colorado4  and  Okla- 
homa,5 although  the  Oklahoma  court  does  not  permit  the  legislature 
to  make  an  emergency  measure  of  measures  explicitly  declared  by  the 
constitution  not  to  be  emergency  measures.  Under  similar  conditions, 
however,  the  courts  of  Michigan,6  South  Dakota,7  Ohio,8  and  Cali- 


2 Kadderly  v.  Portland,  44  Ore.  118  (1913). 

3 Hanson  v.  Hodges,  109  Ark.  479  (1913). 

4 Van  Cleeck  v.  Hamer,  62  Colo.  4 (1916). 

5 In  re  Menefee,  22  Okla.  365  (1908);  Riley  v.  Carrico,  27  Okla.  33  (1910). 

6 Attorney  General  ex  rel  Barbour  v.  Lindsay,  178  Mich.  524  (1914). 

7 State  ex  rel  Richards  v.  Whisman,  36  S.  D.  260  (1915),  overruling  State 
ex  rel  Lavin  v.  Bacon,  14  S.  D.  394  (1901). 

8 Miami  County  v.  Dayton,  92  Ohio  State  215 


91 


fornia,9  take  the  view  that  the  question  of  the  emergency  is  one  for 
judicial  review,  and  in  several  of  these  states  the  courts  have  held  the 
referendum  applicable  to  laws  in  the  face  of  legislative  declarations 
that  the  laws  should  as  emergency  measures  come  into  immediate 
operation. 


Limitations  upon  the  use  of  the  referendum:  The  discussion 

above  has  related  to  the  conditions  under  which  legislatures  may  with- 
draw acts  from  the  operation  of  the  referendum.  A statement  should 
now  be  made  of  the  constitutional  provisions  restricting  the  use  of 
the  referendum.  South  Dakota  in  1898  prescribed  that  the  refer- 
dum  should  not  apply  to  laws  for  the  “support  of  the  state  govern- 
ment and  its  existing  public  institutions”,  in  addition  to  the  exception 
which  it  made  of  laws  necessary  for  the  immediate  preservation  of  the 
public  peace,  health  or  safety.  Provisions  similar  to  those  of  South 
Dakota  have  been  placed  in  the  constitutions  of  Maine,  Colorado, 
California,  Washington,  Ohio,  Arizona  and  Missouri.  The  specific 
exemption  from  the  referendum  of  appropriations  for  the  current 
expenses  of  the  state  government  and  for  state  institutions  has  been 
encouraged  by  the  experience  of  Oregon  with  respect  to  the  appli- 
cation of  the  referendum  to  appropriations  for  the  State  University 
of  that  state.  Some  of  the  states  just  referred  to  have  much  broader 
limitations  than  others  with  respect  to  matters  which  may  not  be  sub- 
ject to  the  referendum,  but  in  general  the  provisions  of  these  states 
may  be  classed  together ; and  Ohio  may  also  be  classed  with  these 
states,  although  Ohio  adds  tax  levies  to  the  matters  not  subject  to  the 
referendum.  Montana  exempts  from  the  referendum  laws  relating  to 
the  appropriation  of  money  and  local  or  special  laws.  New  Mexico 
provides  somewhat  in  detail  that  the  referendum  shall  not  apply  to 
general  appropriation  laws,  to  the  payment  of  the  public  debt,  to  the 
maintenance  of  public  schools,  or  state  institutions,  or  to  special  or 
local  laws.  Maryland  forbids  the  application  of  the  referendum  to 
appropriations  not  exceeding  the  next  previous  appropriations  for 
maintaining  the  state  government  or  for  maintaining  or  aiding  state 
institutions.  The  Utah  constitution  merely  provides  that  the  referen- 
dum shall  not  extend  to  laws  “passed  by  a two-thirds  vote  of  the  mem- 
bers elected  to  each  house”.  Massachusetts  has  the  most  numerous 
limitations  upon  the  use  of  the  referendum,  providing  that  “no  law 
that  relates  to  religion,  religious  practices  or  religious  institutions ; or 
to  the  appointment,  qualifications,  tenure,  removal,  or  compensation  of 
judges;  or  to  the  powers,  creation,  abolition  of  courts;  or  the  opera- 
tion of  which  is  restricted  to  a particular  town,  city  or  political  division 
or  to  particular  districts  or  localities  of  the  commonwealth ; or  that 
appropriates  money  for  the  current  or  ordinary  expenses  of  the  com- 
monwealth, or  for  any  of  its  departments,  boards,  commissions 
or  institutions  shall  be  the  subject  of  a referendum  petition”.  In 
another  part  of  the  Massachuetts  initiative  and  referendum  provi- 


» McClure  v.  Nye,  22  Cal.  App.  248  (1913). 


92 


sions,  the  referendum  is  excluded  from  use  with  respect  to  a series  of 
rights  granted  by  the  declaration  of  rights  of  that  state. 


Limitations  upon  the  Initiative : A number  of  specific  limita- 

tions have  been  made  by  constitutional  provisions  with  respect  to  the 
use  of  the  initiative.  Montana  (1906)  provided  that  the  initiative 
should  not.  be  applicable  to  appropriations  of  money  or  to  local  or 
special  laws.  Ohio  (1912)  forbids  the  use  of  the  initiative  or  refer- 
endum with  respect  to  laws  classifying  property  for  taxation  or  for  the 
single  tax.  Massachusetts  excludes  from  the  application  of  the  initia- 
tive all  of  the  matters  referred  to  above  as  not  being  subject  to  the 
referendum;  measures  relating  to  the  recall  of  judges  or  “to  the  re- 
versal of  a judicial  decision”;  and  also  prohibits  an  initiative  amend- 
ment affecting  the  eighteenth  amendment  of  the  constitution  as  ap- 
proved and  ratified  in  1918  and  with  respect  to  the  limitations  imposed 
upon  the  initiative.  The  eighteenth  amendment  is  the  one  relating  to 
prohibition  of  state  aid  to  sectarian  institutions. 

The  proposal  of  a measure  after  it  has  once  been  rejected  is  dealt 
with  by  constitutional  provisions  in  Oklahoma,  Nebraska  and  Massa- 
chusetts. Oklahoma  provides  that  a measure  rejected  under  the  in- 
itiative and  referendum  shall  not  be  again  submitted  within  three 
years  by  less  than  a 25  per  cent  petition.  The  Nebraska  constitution 
(1912)  provides  that  “the  same  measure  either  in  form  or  in  essential 
substance  shall  not  be  submitted  to  the  people  by  initiative  petition 
(either  affirmatively  or  negatively)  oftener  than  once  in  three  years”. 
Massachusetts  (1918)  has  a constitutional  provision  almost  identical 
with  that  of  Nebraska. 


Use  of  the  Initiative  for  Constitutional  Changes:  The  initia- 

tive and  referendum  provisions  in  South  Dakota,  Utah,  Montana, 
Maine  and  Washington  do  not  permit  the  popular  initiation  of  consti- 
tutional amendments.  Maryland  and  New  Mexico  do  not  have  the 
initiative,  and  Idaho  without  legislation  for  the  purpose,  of  course, 
does  not  have  the  initiative  with  respect  to  constitutional  matters. 

The  constitutions  of  a group  of  states  provide  for  the  use  of  the 
initiative  upon  constitutional  amendments  in  the  same  manner  as  upon 
statutes,  this  statement  being  applicable  to  Oregon,  Nevada,  Missouri, 
Arkansas,  Colorado  and  Mississippi.  California  substantially  belongs 
in  this  same  class,  the  only  distinction  in  this  state  being  that  for 
statutes  there  is  both  a direct  and  an  indirect  initiative  while  for  con- 
stitutional amendments  there  is  merely  a direct  initiative.  In  seven 
states  distinctions  are  made  between  constitutional  amendments  and 
statutes.  In  Oklahoma,  Arizona,  Nebraska  and  North  Dakota  a 
larger  petition  is  required  to  propose  a constitutional  amendment.  In 
Oklahoma  an  8 per  cent  petition  is  sufficient  for  ordinary  legislation 
and  a 15  per  cent  petition  is  required  for  constitutional  amendments. 


93 


In  Arizona  and  Nebraska  the  initiation  of  ordinary  legislation  is  ac- 
complished by  a 10  per  cent  initiative  but  for  constitutional  amend- 
ments a 15  per  cent  petition  is  required.  In  North  Dakota  the  initia- 
tive for  ordinary  statutes  requires  a petition  of  10,000  voters  and  the 
initiation  of  a constitutional  amendment  requires  a petition  of  20,000. 

Michigan  provides  for  an  indirect  initiative  of  8 per  cent  for 
ordinary  legislation  and  for  a direct  initiative  of  10  per  cent  for  con- 
stitutional amendments.  Ohio  provides  for  an  indirect  initiative  upon 
ordinary  legislation,  with  an  original  petition  of  3 per  cent  and  a sup- 
plemental petition  of  an  additional  3 per  cent,  but  for  a 10  per  cent 
direct  initiative  upon  constitutional  amendments. 

Massachusetts  provides  for  a much  more  complex  method  of  in- 
itiating constitutional  amendments  than  for  the  initiation  of  statutes. 
Under  the  Massachusetts  constitution,  25,000  voters  may  present  an 
initiative  petition  for  a constitutional  amendment.  The  proposed 
amendment  then  goes  before  a joint  session  of  the  general  court  and 
three- fourths  of  the  members  voting  in  joint  session  may  amend  the 
proposal.  If  in  such  joint  session  an  initiative  amendment  receives 
the  affirmative  vote  of  not  less  than  one-fourth  of  all  the  members 
elected  it  is  referred  to  the  next  general  court.  In  the  next  general 
• court  if  an  initiative  amendment  or  if  a legislative  substitute  for  such 
amendment  receives  the  affirmative  votes  of  at  least  one-fourth  of  all 
the  members  elected,  the  proposed  amendment  is  submitted  to  the 
people  at  the  next  state  election,  and  is  adopted  if  it  is  approved  by  a 
majority  of  those  voting  on  the  amendment,  such  majority  equaling  at 
* least  30  per  cent  of  the  total  number  of  ballots  cast  at  the  election. 


Use  of  the  referendum  upon  federal  questions:  A constitu- 

tional amendment  in  Ohio  in  1918  expressly  provides  that  the  action 
of  the  legislature  in  ratifying  a proposed  federal  amendment  shall  be 
subject  to  the  referendum.  The  questions  here  present  themselves  as 
to  whether  the  state  amendments  for  the  referendum  are  in  terms 
broad  enough  to  apply  to  federal  questions,  and  also  as  to  whether 
they  may  apply  under  the  terms  of  the  constitution  of  the  United 
States.  The  constitution  of  the  United  States  provides  that  the  times, 
place  and  manner  of  holding  elections  for  members  of  Congress  shall 
be  prescribed  in  each  state  by  the  legislature  thereof.  In  the  case  of 
State  ex  rel.  Schrader  v.  Polley,10  the  court  took  the  view  that  it  was 
proper  to  submit  a South  Dakota  act  dividing  the  state  into  congres- 
sional districts,  holding  that  the  word  legislature  as  used  in  the  con- 
stitution of  the  United  States  refers  to  the  state  legislative  power  and 
includes  therefore  the  initiative  and  the  referendum ; and  the  same 
view  is  taken  in  the  Ohio  case  of  State  ex  rel.  Davis  v.  Hildebrant.11 

With  respect  to  the  ratification  of  amendments  to  the  constitution 
of  the  United  States  it  is  prescribed  that  ratification  shall  be  made  by 
“the  legislatures  of  three-fourth  of  the  several  states”.  In  the  case 


10  26  S.  D.  5 (1910). 

W94  Ohio  State,  154  (1916), 


94 


of  Herbring  v.  Attorney  General12  the  Supreme  Court  of  Oregon 
denied  an  application  for  a mandamus  to  compel  the  submission  to 
the  people  of  Oregon  of  a joint  resolution  ratifying  the  national  pro- 
hibition amendment,  basing  its  judgment  upon  the  view  that  the  word 
“legislature”  as  used  in  the  constitution  of  the  United  States  is  synony- 
mous with  “legislative  assembly”,  and  upon  the  further  view  that  even 
if  this  were  not  the  case  the  constitution  of  Oregon  did  not  provide 
for  a referendum  upon  such  a matter.  Under  a substantially  identical 
constitutional  provision  in  Washington,  the  Supreme  Court  of  Wash- 
ington issued  a mandamus  compelling  the  submission  to  popular  vote 
of  the  national  prohibition  amendment.13 


Legislative  Submission  of  Measures  to  the  Referendum:  In 

a number  of  the  state  constitutional  provisions  for  the  referendum  it 
is  expressly  provided  that  the  legislature  shall  have  authority  itself 
to  submit  measures  to  a popular  vote.  This  is  true  of  the  constitu- 
tional provisions  in  Colorado,  Washington,  Arkansas,  Maine,  Michi- 
gan, Montana,  Oregon  and  Arizona  ; and  in  the  state  of  South  Dakota 
such  submission  is  under  judicial  construction  permitted. 

With  respect  to  various  types  of  laws  a popular  vote  is  required 
by  constitutions  after  legislative  action,  and  the  necessity  of  submitting 
such  laws  to  the  referendum  increases  the  number  of  measures  sub- 
mitted to  popular  vote  in  the  states  having  the  initiative  and  the 
referendum.  Reference  has  been  made  above  to  the  fact  that,  in  Illi- 
nois, banking  laws  and  laws  increasing  the  state  debt  must  be  sub- 
mitted to  a popular  vote  before  they  are  in  effect,  and  similar  constitu- 
tional provisions,  as  well  as  others,  requiring  a referendum  upon  legis- 
lative action,  exist  in  a number  of  the  states  having  the  initiative  and 
the  referendum.  Massachusetts  in  1913  adopted  a constitutional 
amendment  expressly  authorizing  the  submission  of  measures  to  the 
people  of  the  state  by  the  general  court,  but  this  authority  is  apparent- 
ly withdrawn  by  the  constitutional  amendment  of  1918,  which  pro- 
vides for  a popular  initiative  and  referendum. 


Petitions  under  the  initiative  and  the  referendum:  The  table 

given  on  page  81  indicates  the  number  of  petitioners  required  to  pro- 
pose measures  by  the  initiative  and  to  require  the  reference  of  measures 
enacted  by  the  legislature  to  a popular  vote.  It  will  be  noted  from 
this  table  that  8 per  cent  is  the  more  popular  number  for  the  initiative 
and  5 per  cent  the  more  popular  for  the  referendum,  although  there 
has  been  a slight  tendency  to  increase  this  percentage  and  some  ten- 
dency also  in  recent  years  to  require  a specific  number  of  voters  rather 
than  a percentage  of  voters.  The  state  of  Washington  combines  these 


12  180  Pac.  328  (1919). 

13  State  ex  rel.  Mullen  v.  Howell,  181  Pac.  920  (1919).  Upon  the  same  matter 
see  the  recent  decision  of  the  Ohio  Supreme  Court,  Hawk  v.  Smith  (1919). 


95 


two  methods  by  prescribing  a certain  percentage  but  that  the  total  I 
natures  shall  not  exceed  a specific  number.  I 

In  the  states  where  percentages  are  required  .for  the  initiatl 
and  referendum  some  difference  results  through  the  basis  taken  ^B 
the  percentages.  Oregon,  for  example,  bases  its  percentages  on  I 
votes  cast  for  justices  of  the  supreme  court  at  the  last  preceding  ell 
tion.  A number  of  other  states  take  as  a basis  the  total  vote  for  gel 
ernor  at  the  last  preceding  election,  and  such  vote  is  usually  likely  ^B 
be  larger  than  that  for  justices  of  the  supreme  court.  Oklahoma  takl 
as  a basis  the  state  office  receiving  the  highest  vote  at  the  last  statB 
election.  Upon  a percentage  basis  it  is  true,  of  course,  that  the  intrcB 
duction.of  woman’s  suffrage  materially  increases  the  number  of  petiB 
tioners  required  in  a particular  state,  and  it  is  probably  for  this  reasoB 
that  North  Dakota  in  her  revised  initiative  and  referendum  provisioil 
(1918)  requires  a specific  number  of  voters  rather  than  a percentagH 
of  voters.  B 

In  a number  of  state  constitutional  provisions  it  is  required  thaB 
there  be  a certain  geographical  distribution  of  petitioners.  The  Mary-1 
land  referendum  provisions  of  1915  require  that  not  more  than  oneB 
half  of  the  petitioners  be  from  any  one  county  or  from  the  city  ofl 
Baltimore,  and  the  Massachusetts  amendment  of  1918  provides  thaB 
not  over  one-fourth  of  the  signatures  shall  be  from  any  one  countyB 
Ohio  provides  that  at  least  one-half  of  the  percentages  required  foB 
the  various  petitions  shall  be  had  within  one-half  of  the  counties  oB 
the  state.  Nebraska  provides  that  part  of  the  percentages  required* 
shall  be  had  within  at  least  two-fifths  of  the  counties  of  the  state,  andl 
New  Mexico  requires  for  the  referendum  petition  that  the  percentages* 
required  shall  be  from  three-fourths  of  the  counties  of  the  state. 
Missouri  requires  that  the  several  percentages  be  had  within  two- 
thirds  of  the  congressional  districts,  Montana  within  two-fifths  of 
the  counties,  and  Utah  by  legislation  within  a majority  of  the  counties. 

With  respect  to  the  preparation  and  verification  of  petitions  there 
has  been  a tendency  toward  greater  detail  in  the  constitutions,  al- 
though these  matters  have  been  primarily  left  to  legislation.  Cali-  1 
fornia  (1911)  has  introduced  into  its  constitution  a number  of  de-  ( 
tails  as  to  the  preparation  of  the  petition,  and  this  practice  has  been  - 
followed  by  some  other  states.  Difficulties  with  respect  to  the  circu- 
lation of  petitions  has  caused  the  introduction  into  the  Massachusetts 
constitution  of  an  authority  in  the  general  court  to  forbid  the  circula- 
tion of  petitions  by  corporations  or  co-partnerships,  and  for  the  licens- 
ing of  individuals  to  circulate  petitions.  Utah  in  its  statute  of  1917 
requires  an  application  for  blanks  by  five  sponsors  with  the  payment 
of  a fee,  and  that  signatures  be  made  in  the  presence  of  and  with 
certification  by  a notary  public ; each  signature  is  required  to  be 
checked  by  the  county  clerk  with  the  registration  lists.  The  North 
Dakota  constitution  on  the  other  hand  provides  that  no  law  shall 
limit  the  number  of  copies  of  the  petition  to  be  circulated  or  the  pay- 
ment of  compensation  for  the  circulation  of  petitions. 

North  Dakota  provides  in  her  constitution  that  the  decision  of 
the  Secretary  of  State  adverse  to  a petition  shall  be  reviewable  by  the 


96 


Ereme  Court,  and  that  if  the  petition  is  under  review  the  measures 
1 be  submitted  to  the  voters,  and  if  a majority  voting  upon  the 
sure  approves  it,  the  petition  shall  not  be  invalid.  The  Ohio  con- 
itional  amendment  of  1912  provides  that  no  measure  shall  be  held 
institutional  or  void  on  account  of  the  insufficiency  of  the  peti- 
s.” 

Under  the  limited  initiative  for  constitutional  amendments  in  the 
higan  constitution  of  1908  it  was  provided  that  “petitions  shall  be 
ed  at  the  regular  registration  or  election  places  at  a regular 
egistration  or  election  under  the  supervision  of  the  officials  thereof, 
dio  shall  verify  the  genuineness  of  the  signatures  and  certify  the 
act  that  the  signers  are  registered  electors  of  the  respective  town- 
ships and  cities  in  which  they  reside.” 

As  suggested  above,  however,  most  of  the  details  as  to  the  prepar- 
tion  and  verification  of  petitions  have  been  left  to  the  laws  carrying 
nto  effect  constitutional  provisions.  Fraud  in  the  preparation  of 
petitions  has  been  discovered  in  a number  of  cases,  the  most  important 
of  which  were  those  in  Oregon  in  1912  and  in  Ohio  in  1913.  Judicial 
statements  regarding  frauds  will  be  found  in  Barnett’s  Operation  of 
the  Initiative,  Referendum  and  Recall  in  Oregon,  pages  64  to  74,  and 
in  the  case  of  State  ex  rei.  Gongwer  v.  Graves.14 

Largely  as  a result  of  the  frauds  so  practiced,  somewhat  detailed, 
egislation  was  enacted  in  Oregon  and  Ohio  and  similar  legislation 
aow  exists  in  Montana,  Washington  and  Nebraska.  A copy  of  the 
Oregon  law  is  printed  as  an  appendix  to  this  pamphlet.  In  Montana 

I the  local  election  officials  are  required  by  statute  to  compare  the  sig- 
natures of  petitioners  with  registration  lists,  and  a similar  requirement 
f exists  by.  statute  in  Ohio  for  the  counties  where  registration  is  pro- 
I vided  by  law.  Under  the  Nebraska  legislation  of  1919  every  circulator 
j of  a petition  must  be  not  less  than  18  years  of  age  and  a resident  of 
the  county  wherein  the  petitioners  reside,  although  a person  other- 
wise qualified  may  be  permitted  to  circulate  petitions  outside  the  county 
of  his  residence  upon  filing  a bond  with  the  Secretary  of  State. 

Under  Washington  legislation  the  proposers  of  a measure  may 
deposit  blank  petitions  with  the  registration  officer  of  any  city,  town  or 
precinct  and  such  officer  is  required  to  display  placards  in  his  office 
indicating  that  the  petition  may  be  signed  there;  furthermore  he  is 
required  to  keep  his  office  open  for  the  purpose  of  permitting  sig- 
natures, from  6 until  9 o’clock  on  two  evenings  a week  for  the  90  days 
following  the  adjournment  of  any  session  of  the  legislature,  for 
referendum  petitions,  and  during  the  90  days  preceding  the  time  for 
filing,  in  the  case  of  initiative  petitions.  Registration  officers  are 
required  to  check  the  signatures  upon  petitions  with  the  names  on  the 
registration  lists. 

The  matters  referred  to  here  are  not  all  of  those  dealt  with  by 
constitutional  and  statutory  provisions  with  respect  to  petitions,  but 
probably  are  the  more  essential  of  these  matters.  It  should  be  further 
stated,  however,  that  substantially  all  of  the  states  having  the  institu- 
tions of  the  initiative  or  the  referendum  have  corrupt  practice  legis- 

14  90  Ohio  State  311  (1914).  See  also  the  case  of  Thompson  v.  Vaughan,  192 
Mich.  512  (1916). 


97 


lation  penalizing  the  false  signing  of  petitions  or  the  false  obtaining 
of  signatures,  and  some  also  have  statutory  provisions  limiting  the 
amounts  of  expenditure  and  requiring  verified  statements  of  expendi- 
tures to  be  filed  with  certain  public  officers. 


Titles:  Ballot  titles  have  occasioned  a good  deal  of  difficulty 

and  the  importance  of  an  accurate  ballot  title  is  apparent  if  the  voters 
are  not  to  be  misled  with  respect  to  matters  submitted  to  them.  Few 
constitutional  provisions  deal  with  the  matter  of  ballot  titles.  The 
North  Dakota  constitutional  amendment  for  the  initiative  and  refer- 
endum and  the  Maryland  amendment  for'the  referendum  provide  that 
the  Secretary  of  State  shall  prepare  ballot  titles.  The  Massachusetts 
amendment  of  1918  itself  prescribes  the  general  form  of  ballot  and 
provides  that  the  proposed  amendment  or  proposed  law  “shall  be 
described  on  the  ballots  by  a description  to  be  determined  by  the  At- 
torney General,  subject  to  such  provision  as  may  be  made  by  law.” 
The  most  detailed  provisions  regarding  ballot  titles,  however,  may 
be  found  in  statutes  with  respect  to  the  initiative  and  referendum.  In 
Oregon,  Utah,  Oklahoma,  Missouri,  California,  Nebraska  and  Wash- 
ington, statutes  provide  for  the  preparation  or  approval  of  ballot  titles 
by  the  Attorney  General,  with  an  appeal  to  the  courts  if  there  is  dis- 
satisfaction with  his  action.  Less  elaborate  statutory  provisions  with 
respect  to  ballot  titles  may  be  found  in  Arkansas,  Colorado  and  New 
Mexico. 


Publicity  of  Measures : It  is  of  course  true  that  the  intelli- 

gence with  which  voters  may  pass  upon  measures  referred  to  them 
depends  upon  the  machinery  for  bringing  such  measures  to  their  atten- 
tion. A number  of  state  constitutions  provide  for  the  publication  of 
measures  to  be  submitted  to  the  people,  and  four  constitutions  ex- 
pressly provide  for  publicity  pamphlets.  These  constitutions  are  those 
of  Ohio,  Washington,  North  Dakota  and  Massachusetts,  although  in 
all  of  these  cases  the  details  as  to  the  pamphlets  are  left  for  legislative 
determination. 

The  term  “publicity  pamphlet”  has  come  to  be  used  in  this 
country  with  respect  to  pamphlets  prepared  under  official  supervision 
containing  the  text  of  measures  to  be  submitted  to  popular  vote,  to- 
gether with  arguments  for  and  against  such  measures.  Where  such 
publicity  pamphlets  are  required  by  constitutions  or  statutes  there  is 
also  a requirement  that  copies  be  prepared  and  sent  to  the  voters  of 
the  state.  In  addition  to  the  states  whose  constitutions  provide  for 
publicity  pamphlets  such  pamphlets  are  required  by  statute  in  Oregon, 
Oklahoma,  Utah,  California,  Arizona  and  Nebraska.  In  Montana  there 
is  an  apparently  optional  provision  for  the  preparation  and  printing 
of  the  arguments,  and  in  Colorado  there,  has  been  legislation  for  pub- 
licity pamphlets  which  seems  never  to  have  been  employed.  In  the 


98 


state  of  Nevada  the  text  of  measures  is  required  to  be  published  in 
the  newspapers,  and  such  newspaper  text  must  be  sent  to  all  voters. 
In  Maryland,  also,  by  constitutional  provision  the  texts  of  all  refer- 
endum measures  must  be  furnished  to  each  voter. 


Popular  Votes  upon  Initiated  and  Referred  Measures:  In 

general  the  constitutional  provisions  for  the  initiative  and  the  refer- 
endum provide  that  measures  so  submitted  shall  be  adopted  if  ap- 
proved by  a majority  of  those  voting  thereon.  The  Idaho  constitu- 
tional provisions  for  the  initiative  and  referendum,  which  have  never 
come  into  effect  because  of  the  absence  of  legislation,  provide  that 
legislation  submitted  by  the  initiative  “shall  require  the  approval  of  a 
number  of  voters  equal  to  a majority  of  the  aggregate  vote  cast  for  the 
office  of  governor’’  at  the  general  election  at  which  the  measure  is 
submitted.  Oklahoma  provides  that  any  measure  “referred  to  the 
people  by  the  initiative  shall  take  effect  and  be  in  force  when  it  shall 
have  been  approved  by  a majority  of  the  votes  cast  in  such  election”. 
In  Nevada  when  a legislative  act  is  referred  to  the  people  by  petition 
the  constitution  provides  that  it  must  be  approved  by”  a majority  of 
the  electors  voting  at  a state  election”,  although  it  is  doubtful  whether 
this  really  requires  a majority  at  the  election,  because  the  same  consti- 
tutional amendment  provides  that  the  act  shall  be  void  and  of  no  effect 
when  such  a majority  signifies  disapproval.  If  the  Nevada  provision 
is  to  be  construed  as  requiring  a majority  of  the  vote  at  an  election 
in  order  to  approve  an  act  passed  by  the  legislature,  and  referred  on 
petition,  this  would  place  laws  passed  by  the  legislature  at  a distinct 
disadvantage  as  compared  with  initiated  laws  which  are  expressly 
made  effective  upon  their  approval  by  the  qualified  electors  voting 
thereon. 

New  Mexico  under  a referendum  provision  provides  that  no  act 
of  the  legislature  shall  be  rejected  unless  it  is  disapproved  by  a major- 
ity of  the  legal  votes  cast  thereon  and  by  not  less  than  40  per  cent  of 
the  total  number  of  legal  votes  cast  at  the  general  election  at  which  the 
measure  is  submitted.  In  Nebraska  an  initiated  constitutional  amend- 
ment or  an  initiated  law  requires  the  approval  of  a majority  of  the 
votes  cast  thereon  and  of  35  per  cent  of  the  total  vote  cast  at  the  elec- 
tion. With  respect  to  constitutional  amendments  the  adoption  on  popu- 
lar initiation  is  easier  than  on  legislative  proposal  in  Nebraska,  because 
a constitutional  amendment  proposed  by  the  legislature  requires  a 
majority  of  all  votes  cast  at  the  election. 

Arkansas  and  Mississippi  also  require  a majority  of  all  votes 
cast  at  the  election  to  adopt  a constitutional  amendment  proposed  by 
the  legislature,  and  only  a majority  of  the  votes  cast  theron  to  adopt 
amendments  proposed  by  the  initiative.  They,  as  well  as  Nebraska, 
penalize  the  legislative  proposal  of  amendments,  as  against  the  popular 
proposal  of  amendments. 

The  initiative  and  referendum  provisions  of  the  state  of  Wash- 
ington provide  that  any  measure . “shall  take  effect  and  become  the 


99 


law  if  it  is  approved  by  a majority  of  the  votes  cast  thereon ; pro- 
vided that  the  vote  cast  upon  such  question  or  measure  shall  equal 
one-third  of  the  total  votes  cast  at  such  election  and  not  otherwise.” 
As  with  respect  to  other  matters  affecting  the  initiative  and  the 
referendum,  Massachusetts  has  more  detailed  provisions  than  other 
states  as  to  the  popular  majorities  required  for  the  approval  of  meas- 
ures. In  Massachusetts  a legislative  amendment  to  the  constitution 
is  approved  by  a majority  of  the  voters  voting  thereon;  an  initiative 
amendment  or  a legislative  substitute  for  such  an  amendment  must  be 
approved  “by  voters  equal  in  number  to  at  least  30  per  cent  of  the 
total  number  of  ballots  cast  at  such  state  election,  and  also  by  a 
majority  of  the  voters  voting  on  such  amendment.”  An  initiated 
law  in  Massachusetts  becomes  effective  “if  it  shall  be  approved  by 
voters  equal  in  number  to  at  least  30  per  cent  of  the  total  number 
of  ballots  cast  at  such  state  election,  and  also  by  a majority  of  the 
voters  voting  on  such  law.”  A legislative  act  referred  on  petition  or 
an  emergency  law  sought  to  be  repealed  by  the  referendum  cannot 
be  rejected  if  the  negative  vote  is  less  than  30  per  cent  of  the  total 
number  of  ballots  cast  at  the  election. 


Amendment  and  repeal  of  measures  approved  by  the  people. 

A number  of  constitutions  have  thought  it  desirable  to  restrict  the 
methods  of  amending  or  repealing  measures  approved  by  the  people. 
Nevada  provides  that  an  initiative  act  shall  not  be  repealed  by  the 
legislature  within  three  years,  and  that  an  act  of  the  legislature  re- 
ferred to  the  people  on  petition  shall  not  be  set  aside  except  by  direct 
vote  of  the  people.  This  Nevada  provision  permits  an  initiative 
measure  to  be  amended  or  repealed  by  the  legislature,  but  not  an  act 
of  the  legislature  which  has  been  referred  to  and  approved  by  the 
people.  .This  distinction  is  without  any  real  value,  and  not  only  re- 
stricts the  legislature  as  to  the  one  type  of  measure,  but  is  likely  to  add 
materially  to  the  number  of  measures  which  must  be  submitted  to 
popular  vote.  Mississippi  provides  that  no  measure  enacted  by  a 
vote  of  the  people  shall  be  amended  or  repealed  by  the  legislature  ex- 
cept by  a vote  of  three-fourths  of  the  members  of  each  house,  and  the 
North  Dakota  amendment  of  1918  requires  a two-thirds  vote  for 
amendment  or  repeal.  Washington  provides  that  no  law  approved  by 
a majority  of  the  electors  shall  be  amended  or  repealed,  for  two  years 
except  by  popular  vote,  and  Arizona  makes  substantially  the  same 
requirement.  California  and  Michigan  leave  to  the  legislature  full 
power  to  amend  or  repeal  acts  adopted  under  the  referendum,  but  do 
not  permit  initiative  measures  to  be  amended  or  repealed,  except  by 
popular  vote  unless  the  measure  itself  has  otherwise  provided.  The 
Massachusetts  constitutional  amendment  of  1918  expressly  provides 
for  the  legislative  power  of  amendment  and  repeal  of.  laws  approved 
by  the  people,  subject,  as  in  the  case  of  other  legislation,  to  the  veto 
power  and  the  referendum. 

The  provisions  here  commented  upon  make  it  clear  that  they 
involve  a distinct  increase  in  the  compulsory  referendum,  for  if  an  act 


100 


once  adopted  by  popular  vote  can  be  amended  or  repealed  only  by 
popular  vote,  this  involves  increasing  the  number  of  measures  which 
must  necessarily  be  submitted  to  such  a vote,  as  the  number  of 
measures  which  have  already  been  approved  by  the  people  increases. 


Effect  of  the  initiative  and  referendum  upon  the  Governor’^ 
veto  power:  Most  of  the  constitutional  provisions  with  respect 

to  the  initiative  and  referendum  contain  a provision  that  the  Gov- 
ernor’s veto  power  shall  not  extend  to  measures  initiated  by  or  re- 
ferred to  the  people,  although  these  provisions  are  couched  in  some- 
what different  phraseology.  Upon  a measure  initiated  by  popular 
petition  there  would,  of  course,  be  no  opportunity  for  the  exercise  of 
the  veto  power,  where  the  popular  initiative  is  one  directly  to  a vote 
of  the  people.  Where  the  popular  initiative  is  an  indirect  one,  with 
submission  of  the  matter  to  the  legislature,  a veto  power  of  course 
might  be  authorized  if  this  were  desired.  However,  Maine  is  the  only 
state  which  has  any  provision  regarding  a veto  power  in  such  a case, 
and  in  this  state  it  is  provided  that  if  any  measure  initiated  by  the 
people  and  passed  by  the  legislature  without  a change  is  vetoed  by  the 
governor  and  his  veto  sustained  by  the  legislature,  such  measure  shall 
be  referred  to  the  people  at  the  next  general  election. 

Where  a measure  is  adopted  by  the  legislature  without  any  form 
of  initiative  petition,  the  measure  is  subject  to  the  governor’s  veto 
power  under  the  ordinary  constitutional  provisions  with  respect  to 
this  power.  The  constitutional  provision  that  the  veto  power  shall 
not  apply  to  laws  referred  to  the  people  is  of  chief  application  to  the 
cases  in  which  the  legislature  in  passing  an  act  is  authorized  to  refer 
such  act  to  the  people  without  any  popular  petition  or  other  demand 
for  such  action.  In  such  a case  the  legislature  by  passing  the  act  and 
referring  it  to  the  people  is  able  to  avoid  altogether  the  executive  veto, 
and  this  is  the  effect  of  the  initiative  and  referendum  provisions  in 
Oregon,  Montana  and  a number  of  other  states. 


101 


VI.  ANALYSIS  OF  RESULTS. 


Use  of  the  Initiative  and  Referendum:  In  discussing  the 

general  results  of  the  initiative  and  referendum,  it  should  be  borne  in 
mind  that  the  referendum  was  actually  being  used  to  a large  extent  in 
the  American  states  before  the  introduction  of  the  initiative  and 
referendum  for  laws.  Through  the  submission  of  constitutional 
amendments  in  all  of  the  states  except  Delaware,  and  through  the 
necessity  of  submitting  laws  upon  a small  number  of  other  subjects 
in  many  of  the  states,  measures  were  being  submitted  to  popular  vote 
and  in  some  of  the  states  were  being  submitted  in  large  numbers. 
The  initiative  and  referendum  have  added  to  the  institution 
of  the  referendum  as  it  previously  existed,  and  for  the 
states  which  have  adopted  the  broader  institutions  have  of  course  in- 
creased materially  the  number  of  measures  being  submitted  to  the 
popular  vote.  In  discussing  the  measures  submitted  in  the  states 
which  have  adopted  the  initiative  and  referendum,  it  is  impracticable 
to  separate  the  measures  which  would  have  been  submitted  to  a popu- 
lar vote  irrespective  of  the  adoption  of  the  initiative  and  referendum. 
However,  it  should  be  borne  in  mind  that  the  referendum  as  it  existed 
before  a state’s  adoption  of  the  broader  institutions  has  a direct  bear- 
ing upon  the  number  of  popular  votes  had  under  the  initiative  and 
referendum. 

In  discussing  the  popular  votes  under  the  initiative  and  refer- 
endum it  should  also  be  borne  in  mind  that  Maryland  and  New  Mexico 
have  only  the  referendum ; that  Maine,  Montana,  South  Dakota,  Utah 
and  Washington  have  an  initiative  upon  ordinary  legislation  and  a ref- 
erendum, but  no  initiative  upon  constitutional  matters. 

A table  is  given  below  of  the  number  of  submissions  of  questions 
to  popular  vote  in  the  states  adopting  the  initiative  and  referendum. 
When  a state  has  adopted  the  initiative  and  referendum,  all  measures 
submitted  to  the  people  after  that  date  are  included  in  this  table,  al- 
though as  indicated  above  many  of  these  measures  are  such  as  would 
have  been  voted  upon  by  the  people  before  the  adoption  of  the  initia- 
tive and  referendum.  In  reading  this  table  it  should  be  borne  in  mind 
that,  at  the  beginning,  but  one  state  had  the  initiative  and  referendum, 
and  that  in  1919,  twenty-two  states  have  either  one  or  both  of  these 
institutions,  although  one  state  (Idaho)  has  not  a possiblity  of  exer- 
cising the  power  under  the  constitutional  amendment  there  adopted. 
It  should  also  be  said  that  the  Massachusetts  constitutional  amendment 
has  been  adopted  too  recently  for  any  use  to  have  been  made  of  it.  In 
reading  this  table  it  should  also  be  borne  in  mind  that  there  are  ordi- 
narily few  submissions  of  constitutional  questions  or  measures  in  odd 


102 


years, 

and  that  comparisons  must 

be  made 

primarily  for 

the  even 

years. 

Submissions  by  Years. 

Total 

Total 

Total 

Total 

Year 

Submissions 

Adopted 

Year 

Submissions 

Adopted 

1900. , 

2 

2 

1913. . . . 

17 

12 

1902. , 

3 

3 

1914. . . . 

188 

64  (b) 

1904. , 

6 

3 

1915 

18 

1 

1906. . 

16 

12 

1916 

98 

33 

1908.. 

33 

19 

1917. . . . 

22 

10 

190,9.  , 

3 

— 

1918. . . . 

100 

64 

1910. . 

66 

18 

1919. . . . 

9 

5 

1911. . 

6 

3 

1912. . 

130 

58  (a) 

717 

307 

(a)  Three  of  these  held  not  adopted  by  Supreme  Court. 

(b)  One  of  these  held  not  adopted  by  Supreme  Court. 


This  table  indicates  a rather  rapid  increase  in  measures  submitted 
in  the  states  having  the  initiative  and  referendum  until  1914,  with  then 
a material  reduction  for  the  years  1916  and  1918.  The  increase  in 
measures  submitted  to  the  people  in  these  states  between  1900  and 
1914  may  be  attributed  in  part  to  the  rapid  increase  in  the  number  of 
states  in  which  the  initiative  and  referendum  have  become  operative, 
and  in  part  to  the  greater  use  of  these  institutions  in  the  earlier  years 
of  their  adoption. 

The  decrease  in  the  total  number  of  measures  submitted  since 
1914  may  perhaps  be  attributed  in  part  to  the  fact  that  the  institutions 
have  ceased  to  be  quite  as  new  in  a number  of  states,  and  perhaps  in 
part  to  the  fact  that  in  some  states,  such  as  Oregon,  the  adoption  of 
woman’s  suffrage  has  increased  quite  materially  the  difficulty  of  ob- 
taining the  requisite  number  of  signatures  to  petitions. 

A table  is  given  below  indicating  by  states  the  total  number  of 
measures  submitted  during  the  whole  period  within  which  the  initia- 
tive and  referendum  have  been  operative  in  each  state.  This  table 
indicates  separately  the  manner  in  which  the  different  measures  have 
come  to  be  submitted  to  a popular  vote.  With  respect  to  constitu- 
tional amendments  it  has  already  been  said  that  in  some  states  the 
initiative  may  not  be  used,  although  in  most  of  the  states,  as  is  indi- 
cated by  this  table,  two  methods  of  presenting  constitutional  amend- 
ments exist  side  by  side,  the  regular  and  older  method  of  proposal 
through  the  representative  legislature,  and  the  newer  method  of  pro- 
posal through  popular  initiative.  Here  again  it  should  be  borne  in 
mind  that  New  Mexico  and  Maryland  do  not  have  the  initiative  and 
that  Maine,  Montana,  South  Dakota,  Utah  'and  Washington  do  not 
have  an  initiative  for  constitutional  amendments.  In  a number  of 
states  the  legislature  may  not  of  its  own  motion  refer  a matter  to  popu- 
lar vote. 

It  will  be  readily  seen  from  this  table  that  Arizona,  California, 
Colorado,  Missouri,  Oklahoma,  Oregon  and  South  Dakota  are  the 
states  that  have  used  the  popular  submission  of  measures  most  vigor- 
ously, and  it  should  be  noted  in  this  connection  that  Oregon  which  has 


103 


a much  larger  number  of  such  measures,  has  been  using  the  initiative 
and  the  referendum  for  a much  longer  period  than  have  the  other 
states  just  referred  to. 


Total  Number  of  Measures  Submitted. 


State 

Years  of  Submis- 
sions 

Total  Submis- 
sions. 

Constitutional  Amend 
ments. 

Laws 

Proposed  by 
Legislature. 

Proposed  by 
Initiative. 

Total  Amend- 
ments Sub- 
mitted. 

Total  Adopt- 
ed. 

Proposed  by 
Initiative. 

Referred  by 
Legislature. 

Referred  on 
Petition. 

Total  Laws 
Submitted. 

p. 

o 

'O 

< 

rt  - 

I 

i O (U 

1 H 

Arizona 

1912-18 

54 

6 

15 

21 

11 

18 

. 

14 

33 

22 

Arkansas 

1912-18 

19 

6 

5 

11 

6* 

7 

1 

8 

3 

California 

1912-18 

98 

51 

15 

66 

29 

15 

8 

9 

32 

12 

Colorado 

1912-18 

61 

8 

17 

25 

8 

24 

1 

11 

36 

12 

Maine 

1908-18 

17 

11 

1 1 

6 

1 

5 

6 

3 

Maryland. 

1916-18 

2 

2 

2 

2 

Michigan . . . . 

1914-18 

16 

12 

4 

16 

10 



Mississippi 

1918 

2 

1 

1 

2 

f 

Missouri 

1910-18 

48 

29 

14 

43 

l 

i 

4 

5 

1 

Montana 

1908-18 

23 

9 

9 

5 

9 

4 

1 

14 

! 9 

Nebraska 

1914-18 

10 

3 

4 

2 

1 

2 

3 

1 

Nevada 

1908-18 

12 

1 1 

11 

11 

1 

1 

I 

New  Mexico 

1912-18 

8 

5 

1 

1 

I 

North  Dakota 

1916-18 

14 

5 

7 

12 

12 

2 

2 

2 

Ohio 

1918-18 

1 21 

6 

12 

18 

6 

3 

3 

Oklahoma 

1908-18 

45 

10 

23 

33  ' 

12 

6 

2 

4 

12 

7 

Oregon 

1904-19 

170 

37 

43 

80 

31 

62 

12 

16 

90 

33 

South  Dakota 

1900-18 

! 73 

50 

50 

27 

9 

14 

23 

8 

Utah 

1918 

3 

3 

3 

3 

Washington 

1914-18 

21 

2 

2 

9 

3 

7 

19 

3 

717 

269 

160 

429 

187 

160 

34 

94 

288 

120 

I 

* Three  held  not  adopted  by  supreme  court. 


Elections  at  which  a large  number  of  measures  have  been 
submitted.  Since  the  adoption  of  the  initiative  and  referendum 
there  have  been  ten  elections  in  the  states  adopting  these  institutions 
in  which  fifteen  or  more  measures  have  been  submitted  to  a popular 
vote.  The  table  printed  below  gives  an  analysis  of  the  measures 
submitted  at  these  elections,  by  the  types  of  measures  submitted. 


Ten  Principal  Elections. 


State. 

Year  of  Submis- 
sion. 

Total  Submis- 
sions. 

Constitutional  Amend- 
ments. 

Laws. 

Proposed  by 
Legislature. 

Proposed  by 
Initiative. 

Total  Amend- 
ments Sub- 
mitted. 

Total  Adopt- 
ed. 

Proposed  by 
Initiative. 

Referred  by 
Legislature. 

Referred  on 
Petition. 

Total  Laws 
Submitted. 

Total  Adopt- 
ed. ' 

Arizona 

1914 

19 

5 

5 

2 

10 

4 

14 

7 

California 

1914 

47 

22 

8 

30 

18 

9 

4 

4 

17 

9 

California 

1918 

25 

18 

1 

19 

8 

6 

6 

1 

Colorado 

1912 

32 

3 

11 

14 

3 

12 

1 

5 

18 

5 

Colorado 

1914 

16 

3 

5 

8 

2 

3 

5 

8 

2 

Missouri 

1914 

15 

8 

3 

11 

4 

4 

Oregon 

1908 

19 

4 

6 

10 

5 

5 

4 

9 

6 

Oregon 

1910 

32 

4 

7 

11 

4 

18 

2 

1 

21 

6 

Oregon 

1912 

37 

6 

8 

13 

6 

20 

3 

23 

6 

Oregon 

1914 

29 

8 

1 1 

19 

4 

8 

2 

10 

270 

76 

65 

140 

52 

91 

9 

30 

130 

42 

104 


Analysis  of  submissions  by  types  of  measures. 

(a)  Constitutional  Amendments : Reference  has  already  been 

made  to  the  fact  that  a compulsory  referendum  existed  in  all  states 
except  Delaware  before  the  adoption  of  the  initiative  and  referendum 
by  any  state,  and  to  the  fact  that  this  compulsory  referendum  has  con- 
tinued for  such  measures.  The  compulsory  referendum  upon  consti- 
tutional amendments  through  legislative  submission  of  such  amend- 
ments presents  to  the  voters  of  some  states  without  the  initiative  and 
referendum  a large  number  of  measures  to  be  voted  upon  at  each  elec- 
tion. Not  only  this,  but  in  a state  like  California,  the  legislative  sub- 
mission of  constitutional  amendmens  was  responsible  for  the  submis- 
sion of  numerous  measures  to  the  people  before  the  adoption  of  the 
initiative  and  referendum.  In  Louisiana  which  does  not  have  the 
initiative  and  referendum,  there  were  submitted  by  the  legislature,  in 
the  ten  biennial  elections  between  1900  and  1919,  one  hundred  and 
thirty-two  constitutional  amendments  of  which  one  hundred  and  six 
were  adopted.  In  1912  the  legislature  proposed  to  the  voters  of  Louis- 
iana nineteen  constitutional  amendments  and  in  1914  and  1916  eigh- 
teen constitutional  amendments  for  each  year. 

California  adopted  the  initiative  and  referendum  in  1911,  the  first 
measures  under  which  were  submitted  in  that  state  in  1912.  In  1911, 
however,  the  legislature  of  California  submitted  23  proposed  consti- 
tutional amendments  to  the  voters  of  that  state  and  in  each  of  the 
years  1906  and  1908  the  legislature  of  California  submitted  fourteen 
measures  to  the  voters.  The  fact  of  this  frequent  submission  of  con- 
stitutional amendments  before  the  adoption  of  the  initiative  and  refer- 
endum in  California  must  be  taken  into  consideration  in  considering 
the  very  large  total  of  submissions  since  the  introduction  of  the  init- 
iative and  the  referendum  in  that  state. 

Referring  to  the  table  of  total  submissions  on  page  103,  it  will  be 
noted  that  in  the  states  having  the  initiative  and  referendum  seven 
hundred  and  seventeen  measures  have  been  submitted  to  a popular 
vote.  Of  these  measures  four  hundred  and  twenty-nine  were  pro- 
posed constitutional  amendments  upon  which  the  referendum  is  com- 
pulsory. That  is,  in  order  to  change  the  constitution  the  measures 
must  be  submitted  to  a popular  vote.  Of  the  four  hundred  and  twenty- 
nine  constitutional  amendmens  submitted  to  a popular  vote,  two  hun- 
dred and  sixty-nine  were  proposed  by  the  legislature  and  one  hundred 
and  sixty  by  the  initiative.  A large  number  of  these  proposed  consti- 
tutional amendments  relate  to  matters  of  relatively  small  importance 
and  the  popular  submission  in  the  larger  number  of  these  cases  was 
made  necessary  by  the  fact  that  if  the  changes  were  to  be  made 
at  all  they  must  be  made  by  constitutional  amendment.  That 
is,  more  than  four  out  of  each  seven  of  the  proposals  submitted 
to  the  people  in  states  having  the  initiative  and  referendum  were 
submitted  in  large  part  because  of  the  fact  that  detailed  state 
constitutions  made  it  necessary  to  employ  a compulsory  rather  than  an 
optional  referendum.  A very  large  number  of  the  constitutional 
amendments  proposed  by  the  legislature  were  ones  upon  which  a 


105 


popular  vote  would  in  all  likelihood  not  have  been  demanded  had  the 
necessity  for  such  a vote  depended  upon  popular  petition. 

In  1914.  forty-seven  measures  were  submitted  to  a popular  vote 
of  the  people  of  California,  but  of  these  forty-seven,  thirty  were  pro- 
posed constitutional  amendmens  and  twenty-two  of  these  proposed 
constitutional  amendments  were  submitted  by  the  legislature. 
Referring  now  to  the  elections  in  which  the  largest  number  of  meas- 
ures has  been  submitted  to  a popular  vote  (Table  on  page  103),  the 
optional  referendum,  that  is — a referendum  not  necessary  for  the 
adoption  of  the  measure,  was  applied  to  but  seventeen  of  the  forty- 
seven  measures. 

In  the  Oregon  election  of  1910,  thirty-two  measures  were  sub- 
mitted to  a popular  vote,  of  which  eleven  were  constitutional  amend- 
ments. In  the  Oregon  election  of  1912,  thirty-seven  measures,  were 
submitted  to  the  popular  vote,  of  which  fourteen  were  constitutional 
amendments.  In  the  Oregon  election  of  1914,  twenty-nine  measures 
were  submitted  to  the  people,  of  which  nineteen  were  constitutional 
amendments.  The  statements  here  made  are  perhaps  sufficient  to  in- 
dicate that  to  a very  large  extent  the  measures  submitted  in  initiative 
and  referendum  states  are  constitutional  amendments  submitted  under 
a compulsory  referendum  rather  than  laws  submitted  under  an  op- 
tional referendum. 

(b)  The  extent  of  legislative  initiative  as  compared  with  popular 
initiative.  Referring  again  to  the  table  on  page  103,  it  will  be  seen  that 
of  the  seven  hundred  and  seventeen  measures  submitted  to  a popular 
vote  in  the  initiative  and  referendum  states,  one  hundred  and  sixt>r 
were  constitutional  amendments  proposed  by  popular  initiative  and  one 
hundred  and  sixty  were  laws  proposed  by  popular  initiative.  That 
is,  out  of  the  seven  hundred  and  seventeeen  measures  submitted  to 
popular  vote  three  hundred  and  twenty  were  initiated  by  popular  peti- 
tion. That  is,  about  three  out  of  seven  of  the  measures  submitted  to 
a popular  vote  were  actually  initiated  by  a popular  petition. 

Of  the  seven  hundred  and  seventeeen  measures  submitted  to  a 
popular  vote,  however,  ninety-four  laws  were  referred  on  the  basis  o£ 
popular  petition  so  that  they  may  properly  be  added  to  the  total  of 
measures  upon  which  popular  petition  forced  a vote.  Adding  the 
ninety-four  legislative  measures  referred  on  the  basis  of  popular  peti- 
tion to  the  three  hundred  and  twenty  measures  initiated  by  popular 
petition,  we  have  a total  of  four  hundred  and  fourteen  measures  whose 
submission  to  a vote  was  forced  by  a popular  petition.  That  is,  sub- 
stantially four  out  of  every  seven  measures  were  submitted  as  a result 
of  popular  action  forcing  submision. 

The  remaining  three  hundred  and  three  measures  were  submitted 
as  a result  of  legislative  action,  and  thirty-four  of  these  three  hundred 
and  three  were  referred  to  the  people  by  the  legislatures  as  a result 
of  legislative  action  without  waiting  for  any  specific  popular  demand 
by  petition. 

( c ) In  view  of  the  fact  that  the  compulsory  referendum  upon 
constitutional  amendments  has  played  such  a large  part  in  forcing  a 
large  number  of  popular  votes  upon  measmes,  it  may  be  well  to  sum 


106 


up  the  relationship  between  the  optional  and  the  compulsory  refer- 
endum in  the  states  having  the  initiative  and  the  referendum.  It  has 
already  been  suggested  that  of  the  seven  hundred  and  seventeen  meas- 
ures submitted  in  these  states  four  hundred  and  twenty-nine  related  to 
constitutional  amendments,  as  to  which  if  the  measures  were  to  be 
adopted  a popular  vote  was  compulsory.  It  is  of  course  impossible  to 
know  to  what  extent  under  a different  machinery  the  one  hundred  and 
sixty  initiated  amendments  would  have  been  handled  in  another  way, 
but  it  is  possible  to  say  that  the  present  organization  of  state  constitu- 
tions made  necessary  the  submission  of  four  hundred  and  twenty-nine 
compulsory  referenda  out  of  seven  hundred  and  seventeen  submissions. 

From  the  standpoint  of  the  voters  the  thirty-four  measures  refer- 
red by  legislatures  to*  a popular  vote  are  compulsory  referenda, 
although  of  course  some  of  them  were  optional  in  the  sense  that  the 
legislature  did  not  have  to  submit  them  in  order  to  bring  the  measures 
into  effect. 

(d)  The  extent  of  the  popidar  vote  upon  measures  submitted 
to  the  people : It  will  be  of  value  to  review  briefly  the  extent  of  the 

popular  vote  in  the  states  here  being  dealt  with.  In  Arizona  the  popu- 
lar vote  upon  measures  in  the  elections  from  1912  to  1916  presented  a 
fair  proportion  of  the  total  number  of  those  voting  in  the  general 
elections;  although  in  1918  there  was  a distinct  reduction  in  the  popular 
vote  upon  measures,  and  upon  several  measures  the  popular  vote  fell 
below  50  per  cent.  In  Oregon,  where  the  greatest  number  of  measures 
have  been  submitted,  the  proportion  of  vote  upon  measures  to  the 
total  vote  at  elections  has  on  the  whole  been  large.  For  the  years  1904 
to  1919  the  average  proportion  upon  all  measures  was  well  over  70  per 
cent,  although  there  was  a slump  in  popular  voting  upon  measures  in 
1918.  In  discussing  the  proportion  of  votes  in  Oregon  it  should  be 
mentioned  that  a number  of  measures  have  been  submitted  at  special 
elections.  In  these  cases  it  is  of  course  improper  to  compare  the  total 
vote  with  the  vote  upon  measures  (inasmuch  as  the  two  are  substan- 
tially identical),  and  such  votes  have  been  excluded  from  the  state- 
ment given  above.  The  votes  upon  measures  in  Arkansas,  South 
Dakota  and  Washington  have  compared  favorably  with  those  in 
Oregon,  the  average  in  Washington  being  above  70  per  cent  of  the 
total  vote  at  the  election.  In  North  Dakota  the  total  vote  upon  meaures 
has  been  relatively  large  as  compared  with  that  upon  general  elections. 
In  Nebraska,  Ohio  and  Oklahoma  the  popular  vote  has  been  a fair  one. 
In  Michigan,  for  the  sixteen  measures  voted  upon  at  five  elections 
between  1914  and  1918,  the  popular  vote  has  averaged  over  85  per  cent 
of  the  total  vote  for  candidates  at  the  same  elections. 

In  Missouri  the  biennial  elections  of  1910,  1912,  1914,  1916  and 
1918  have  brought  out  relatively  large  votes  upon  measures,  the  votes 
in  1910,  1912  and  1914  averaging  well  above  70  per  cent  of  the  total 
vote  in  the  elections.  In  each  of  the  elections  of  1910,  1912  and  1914 
in  Missouri  there  was  one  important  question  which  attracted  the 
attention  of  the  voters.  In  1910  the  liquor  question,  in  1912  the  tax 
issue,  and  in  1914  the  issue  of  woman’s  suffrage  all  brought  out  strong 
popular  votes ; and  in  each  of  these  elections  there  was  an  effort  on  the 


107 


part  of  large  interests  in  the  community  to  have  the  voters  vote  “no” 
upon  all  measures  so  that  they  would  be  -surer  of  voting  “no”  upon 
measures  as  to  which  there  was  the  greatest  controversy.  On  this 
account  all  measures  submitted  in  Missouri  in  1910,  1912  and  1914 
were  rejected;  eleven  measures  were  rejected  in  1910,  nine  in  1912  and 
fifteen  in  1914. 

In  California  popular  voting  has  been  uneven.  In  some  elections 
a good  proportion  of  the  electors  have  voted  upon  measures,  but  there 
are  a number  of  cases  in  which  the  total  popular  vote  upon  measures 
falls  to  50  per  cent  or  less  of  the  total  popular  vote  in  the  elections. 

Colorado  is  the  one  state  which  makes  the  worst  showing  as  to 
popular  votes.  At  the  Colorado  election  in  1912,  thirty-two  measures 
were  submitted  to  a popular  vote.  Of  these  measures  but  one  received 
a vote  of  over  70  per  cent  of  that  cast  in  the  general  election.  Only 
four  measures  (including  that  which  received  over  70  per  cent)  re- 
ceived over  50  per  cent  of  the  total  vote  at  the  election,  and  twelve 
had  either  30  per  cent  or  less  of  the  total  vote  cast  at  the  election.  Of 
the  sixteen  measures  submitted  in  1914,  one  had  95  per  cent,  three 
above  60  per  cent,  six  a popular  vote  exceeding  50  per  cent  of  the 
total  vote  at  the  election,  (prohibition  having  95  per  cent),  and  all  of 
the  other  measures  had  cast  upon  them  50  per  cent  or  less  of  the 
total  vote  at  the  election.  Upon  the  eight  measures  submitted  in  1916 
a better  showing  was  made,  two  measures  having  cast  upon  them  81 
per  cent  of  the  total  vote,  and  four  others  having  a total  vote  ex- 
ceeding 50  per  cent.  Of  the  five  measures  submitted  in  1918  almost 
an  equally  good  showing  was  made. 

Special  attention  should  be  called  to  the  results  in  states  which 
require  for  the  adoption  of  measures  more  than  a majority  of  those 
voting  upon  the  question.  Arkansas,  Mississippi,  Oklahoma  and  Ne- 
braska require  a majority  of  all  votes  at  the  election  to  adopt  constitu- 
tional amendments  proposed  by  the  legislature,  and  in  these  states,  as s 
well  as  in  others  (such  as  Illinois)  having  a similar  requirement,  it  is? 
difficult  to  obtain  such  a vote,  although  Nebaska  has  in  some  cases 
adopted  amendments  under  a plan  which  obtains  party  endorsements 
and  then  counts  all  straight  party  votes  for  the  measure.  Oklahoma 
requires  a majority  of  all  votes  at  the  election  to  adopt  initiated  laws 
or  constitutional  amendments,  and  a number  of  measures  have  failed 
because  of  this  requirement ; in  one  case  a special  election  was  used  for 
submissions,  apparently  because  a majority  at  such  an  election  would 
be  substantially  equivalent  to  a majority  of  those  voting  on  the  question^ 

New  Mexico  requires  a negative  vote  equal  to  forty  per  cent  at 
the  election  to  reject  a legislative  act  on  the  referendum,  but  no  votes 
yet  have  indicated  how  this  provision  will  work.  In  Nebraska  init- 
iated amendments  and  laws  must  receive  an  affirmative  vote  equal  to 
35  per  cent  of  the  total  vote  at  the  election,  and  though  the  Nebraska 
provision  has  not  been  thoroughly  tested,  the  35  per  cent  require- 
ment appears  to  have  made  no  difficulty. 

The  percentages  of  affirmative  votes  on  pages  71  and  72  of  this 
pamphlet  are  of  interest  in  this  connection.  Upon  state-wide  public 
policy  questions  it  will  be  noted  that,  while  the  affirmative  votes  in  only 


108 


two  cases  constitute  a majority  of  all  votes  cast  at  the  election,  several 
of  them  run  close  to  50  per  cent,  and  had  they  involved  real  issues, 
all  of  them  would  have  resulted  in  popular  approvals,  under  a rule 
requiring  an  affirmative  vote  equal  to  40  per  cent  of  the  total  vote  at 
the  election.  Upon  these  questions  it  should  be  borne  in  mind  that  the 
questions  are  phrased  in  general  language  so  as  to  promote  affirmative 
voting,  and  that  the  negative  vote  would  probably  have  been  larger 
except  for  the  fact  that  it  was  known  that  the  vote  would  not  be  de- 
cisive of  the  isues  involved. 

Of  the  state-wide  measures  appearing  on  pages  72  and  73 
it  will  be  noted  that  few  measures  approved  by  a majority  voting 
thereon  would  have  been  rejected  had  such  majority  been  required  to 
equal  35  or  40  per  cent  of  the  total  vote  at  the  election.  This  applies 
to  all  state-wide  questions  submitted,  including  bank  laws,  with  the  ex- 
ception of  the  measures  submitted  during  the  years  from  1892  to  1898. 
During  this  period  questions  appeared  upon  the  general  ballot,  in  such 
a position  that  they  could  not  easily  be  voted  upon,  but  the  separate 
or  “little  ballot”  provided  by  statute  in  1899  removed  this  difficulty. 

The  table  of  popular  votes  in  Chicago  since  1905,  printed  on 
pages  74  to  79  of  this  pamphlet,  indicates  about  the  same  results  as 
does  the  tables  of  state-wide  votes.  Of  the  questions  which  received 
a majority  of  the  votes  cast  thereon,  forty-two  had  an  affirmative 
vote  of  more  than  40  per  cent  of  the  total  vote  at  the  election ; thirteen 
between  35  and  40  per  cent ; and  eight  less  than  35  per  cent  of  such 
vote. 


Proportion  of  measures  adopted:  Little  conclusion  can  be 
drawn  from  tht  proportion  between  the  number  of  measures  adopted 
and  rejected  by  popular  vote.  From  the  table  on  page  102  it  will  be 
seen  however  that  the  people  have  not  been  inclined  to  approve  all  of 
the  measures  submitted.  The  elections  of  1910,  1912,  1914  and  1916 
show  a distinct  conservatism  upon  the  part  of  the  electorate. 

A table  is  presented  below  indicating  the  total  adoptions,  classified 
by  methods  of  submisson,  in  the  states  having  the  initiative  and  refer- 
endum or  referendum  only.  Laws  referred  on  petition  are 
normally  referred  because  of  some  strong  opposition  justi- 
fying the  opponents  of  the  legislation  in  going  to  the 

trouble  or  expense  of  preparing  a petition.  The  real  test 

of  the  referendum  in  this  case,  therefore,  so  far  as  the  purpose 
to  be  accomplished  is  concerned,  is  the  proportion  of  rejections'  rather 
than  that  of  adoptions.  Tested  in  this  manner  the  referendum  on 
petition  has  accomplished  its  purpose  most  effectively,  having  rejected 
57.45  per  cent  of  the  measures  so  submitted,  whereas  the  initiative  has 
obtained  the  adoption  of  less  than  40  per  cent  of  its  proposals.. 

Laws  referred  by  the  legislature  have  the  highest  proportion  of 
adoptions,  and  this  was  probably  to  be  expected  in  view  of  the  fact 
that  in  these  cases  the  legislature  was  either  shifting  its  own  respon- 
sibility to  the  people  or  was  submitting  to  them  a measure  upon  which 


109 

it  might  have  been  supposed  a distinct  popular  sentiment  existed.  The 
smallest  proportions  of  adoptions  are  for  amendments  proposed  by 
the  initiative  and  laws  proposed  by  the  initiative.  With  respect  to 
amendments  proposed  by  the  legislature  the  adoptions  and  rejections 
just  about  balance  each  other,  and  this  situation  is  not  very  distinctly 
different  from  that  in  the  states  which  do  not  have  the  initiative  and 
referendum.  For  the  country  as  a whole,  during  the  period  from 
1901  to  1919,  some  1500  constitutional  amendments  were  submitted  to 
the  people  of  which  about  900  were  adopted  so  that  for  the  country 
as  a whole  the  popular  action  upon  amendments  is  somewhat  more 
favorable  than  for  the  amendments  proposed  by  the  legislature  in  the 
states  having  the  initiative  and  the  referendum.  However,  attention 
should  be  called  to  the  fact  that  the  low  percentage  of  adoptions  of 
amendments  proposed  by  the  initiative  in  the  states  here  under  discus- 
sion has  done  some  little  to  lower  the  average  adoption  of  constitutional 
amendments  for  the  whole  country. 

In  the  states  having  the  initiative  for  constitutional  amendments, 
the  proportion  of  popular  approvals  of  amendments  submitted  by  the 
legislature  is  smaller  than  in  the  other  states  of  the  country,  though  in 
these  states,  the  people  seem  more  inclined  to  approve  amendments 
proposed  by  the  legislature  than  amendments  proposed  by  popular 
petition.  Of  the  states  having  the  initiative,  fourteen  permit  its  use 
for  constitutional  amendments.  In  these  fourteen,  one  hundred  and 
eighty-five  amendments  were  submitted  by  the  legislature,  and  eighty- 
one  adopted,  a proportion  of  43.78  per  cent;  one  hundred  and  sixty 
were  submitted  by  the  initiative  and  fifty-eight  adopted,  a proportion  of 
36.25  per  cent. 


Table  of  Submissions  and  Adoptions. 


Amendments  proposed  by  legislature. . . . 

Laws  referred  by  legislature 

Amendments  proposed  by  initiative 

Laws  proposed  by  initiative 

Laws  referred  on  petition 

Submitted. 

269 

34 

160 

160 

94 

Adopted. 

129 

18 

58 

62 

40 

Proportion. 

47.95 

52.94 

36.25 

38.75 

42.55 

Total  

717 

307 

42.81 

110 


VII.  PROBLEMS  AND  CONCLUSIONS. 


General  statement : In  connection  with  the  initiative  and 

referendum  several  distinct  problems  present  themselves: 

(a)  The  drafting  of  the  measure  to  be  submitted  under  the  init- 
iative ; 

(b)  The  obtaining  of  initiative  or  referendum  petitions; 

(c)  The  submission  of  measures  in  such  a manner  that  they 
may  be  acted  upon  intelligently  by  the  voters,  and 

(d)  The  popular  vote  upon  proposals. 


Draftsmanship:  It  may  of  course  be  truly  said  that  drafts- 

manship of  laws  enacted  by  representative  legislatures  is  defective, 
and  that  the  draftsmanship  of  initiated  laws  is  not  materially  worse 
than  much  of  the  draftsmanship  of  laws  enacted  under  the  representa- 
tive system.  However  this  does  not  deny  the  need  for  more  expert 
draftsmanship,  but  rather  asserts  the  need  for  such  draftsmanship 
as  to  representative  legislative  action  as  well  as  with  reference  to 
initiated  measures,  if  the  initiative  is  to  be  adopted. 

The  relationship  between  direct  and  indirect  initiation  of  measures 
under  existing  constitutional  provisions  has  already  been  discussed, 
and  this  discussion  has  a direct  bearing  upon  the  problem  of  drafts- 
manship of  initiated  measures.  In  the  states  which  permit  the 
legislative  proposal  of  alternative  measures,  the  two  proposed  measures 
then  going  to  a vote  of  the  people,  there  is  of  course  no  oppor- 
tunity for  improving  the  initiated  measure,  and  there  is  an  added 
complexity  in  the  issue  presented  to  the  voters.  In  states  where,  as  in 
Ohio  and  Massachusetts,  there  is  an  indirect  initiative  with  a possi- 
bility of  correcting  a measure  upon  the  basis  of  legislative  deliberation, 
there  is  a possibility  of  improving  the  quality  of  the  measure  before  it 
is  finally  submitted  to  the  popular  vote.  This  was  also  true  under  the 
rejected  Wisconsin  plan  and  under  a possible  combination  of  the  Wis- 
consin plan  with  a suggested  amendment  which  was  rejected  by  the 
general  assembly  in  Illinois  in  1913. 

Any  plan  which  enables  a small  group  of  persons  to  force  a vote 
upon  a proposal  without  possibility  of  revision,  is  to  that  extent  defect- 
ive. Legislative  deliberation  upon  a proposed  draft  of  a measure  is 
of  value,  and  such  deliberation  is  possible  under  the  Ohio  ind  Massa- 
chusetts plans.  Under  these  plans  of  course  there  is  a somewhat 
greater  degree  of  delay  in  submitting  measures  to  a popular  vote, 
unless  a special  election  is  called,  and  special  elections  are  of  course  ex- 
pensive. 


Ill 


Petitions:  As  has  already  been  suggested  in  the  analysis  of 

the  initiative  and  referendum  provisions,  the  size  of  petitions  varies 
considerably  in  the  several  states.  The  obtaining  of  petitions  is  a mat- 
ter of  some  difficulty  and  expense  even  though  it  be  recognized  that  a 
large  number  of  people  sign  petitions  without  very  much  thought.  The 
obtaining  of  an  8 per  cent  petition  for  an  initiative  measure  becomes 
of  course  more  difficult  the  larger  the  number  of  voters.  The  granting 
of  woman’s  suffrage  in  Oregon  has  probably  had  an  appreciable  effect 
upon  the  number  of  initiative  proposals.  In  a state  like  Illinois  the 
difficulty  becomes  greater,  and  will  be  increased  by  the  granting  of 
woman’s  suffrage.  Large  petitions  on  the  other  hand  do  not  neces- 
sarily represent  a large  sentiment  in  the  community  in  favor  of  a 
measure. 

A small  petition  obtained  under  careful  safeguards  is  likely  to  rep- 
resent much  more  of  an  actual  public  sentiment  than  a large  petition 
obtained  through  the  hiring  of  “professional  signature  getters”.  A 
plan  such  as  that  which  is  made  optional  in  Washington,  of  leaving 
petitions  with  registration  officers  has  distinct  merit,  alhough  such  a 
plan  would  materially  increase  the  difficulty  of  obtaining  a large 
petition. 

In  a number  of  states  a certain  geographical  distribution  of  peti- 
tioners is  required,  and  this  seems  desirable  in  order  to  make  sure 
that  the  measure  being  petitioned  for  is  not  merely  one  sought  by 
people  in  a particular  community.  However,  the  state  of  Illinois 
presents  a problem  somewhat  different  from  that  of  almost  all  of  the 
states  which  have  adopted  the  initiative  and  the  referendum,  although 
Maryland  and  Massachusetts  are  perhaps  most  comparable.  In  the 
state  of  Illinois  there  is  one  county  with  very  nearly  half  of  the  popu- 
lation of  the  state,  and  some  method  will  have  to  be  devised  to  make 
sure  that  initiative  petitions  represent  not  merely  a sentiment  within 
that  county,  and  also  that  the  initiative  and  referendum  if  adopted 
will  not  be  employed  to  impose  legislation  upon  that  county  by  the  rest 
of  the  state. 

If  an  initiation  is  to  be  indirect,  with  a possibility  of  amending 
the  proposal  before  its  submission,  upon  the  basis  of  legislative  de- 
liberation, there  may  be  no  great  need  for  a large  petition.  In  fact 
the  need  for  a petition  to  present  the  measure  to  the  legislature  hardly 
exists  at  all,  and  if  a plan  of  this  sort  be  adopted,  the  petition  may 
come  after  the  legislative  deliberation  as  in  the  case  of  the  Ohio  sup- 
plementary petition.  In  such  a case  a petition  need  not  be  large,  if 
it  may  be  employed  only  in  the  case  where  a proposed  measure  has 
received  the  support  of  a certain  number  of  members  of  the  general 
assembly. 


Submission  to  the  voters:  The  problems  of  ballot  title  and  of 

arguments  upon  measures  may  properly  be  left  to  the  legislature,  al- 
though these  are  highly  important  matters  from  the  standpoint  of  any 
effective  operation  of  the  initiative  and  the  referendum. 


112 


Under  the  constitutional  provisions  of  a number  of  states  alter- 
native and  competing  measures  are  expressly  permitted,  several  states 
providing  that  alternative  measures  shall  be  submitted  in  such  a way 
that  the  vote  shall  be  in  the  alternative.  The  submission  of  directly 
competing  measures,  either  by  provisions  for  alternative  measures  or 
otherwise,  is  apt  to  lead  to  grave  confusion  in  the  minds  of  most  intel- 
ligent voters,  and  this  plan  should  be  avoided  if  possible  in  the  adop- 
tion of  any  initiative  and  referendum  scheme. 

A popular  vote  is  of  little  value : 

(1)  if  the  questions  submitted  are  so  trivial  or  so  local  in 
character  as  not  to  be  of  interest  to  those  to  whom  they  are  submitted. 

(2)  if  the  questions  are  so  complicated  and  technical  that  the 
voter  has  no  satisfactory  means  of  informing  himself  regarding  them. 

(3)  If  the  questions  are  submitted  in  such  great  number  that  the 
voter,  even  if  he  might  possibly  render  a satisfactory  judgment  upon 
any  one  of  them,  can  not  inform  himself  regarding  the  merits  of  all 
the  measures  upon  which  he  must  pass. 

It  has  already  been  suggested  that  many  constitutional  amend- 
ments submitted  to  voters  are  local  or  trivial,  and  the  same  statement 
may  be  made  of  many  laws  or  proposed  laws  submitted  through  the 
initiative  and  referendum.  However,  the  legislative  proposals  sub- 
mitted through  the  initiative  and  referendum  have  in  the  main  re- 
lated to  matters  of  general  interest.  The  publishing  of  arguments 
upon  measures  of  course  meets  in  part  the  problem  of  informing 
voters  upon  matters  to  be  submitted  to  them,  although  it  can  hardly 
be  said  that  the  so-called  publicity  pamphlets  have  in  any  state  fully 
and  satisfactorily  informed  the  voters  upon  all  measures  to  be  sub- 
mitted. 

If  the  initiative  and  referendum  are  to  be  adopted,  however,  it 
seems  unwise  to  specify  in  detail  matters  to  which  they  are  not  to  be 
made  applicable.  This  plan  which  has  been  adopted  in  Massachusetts 
seems  less  desirable  than  some  plan  of  applying  the  initiative  and  refer- 
endum so  that  it  will  limit  itself  automatically  to  matters  of  distinct 
general  interest. 


Popular  vote:  As  has  been  already  suggested  the  more  com- 

mon provision  in  this  country  is  that  measures  submitted  to  the  people 
shall  be  adopted  upon  approval  by  a majority  of  those  voting  thereon. 
The  experience  of  Colorado  in  the  adoption  of  a number  of  important 
matters  when  less  than  30  per  cent  of  the  voters  expressed  themselves 
either  way,  raises  some  doubt  as  to  the  validity  of  the  plan  of  adopt- 
ing merely  upon  the  vote  of  the  majority  of  those  voting  thereon.  It 
is,  of  course,  at  the  same  time  quite  clear  that  to  require  a majority 
of  those  voting  at  a general  election  makes  the  institution  substantially 
unworkable,  no  matter  how  great  the  popular  interest  may  be,  and  this 
statement  is  particularly  applicable  with  respect  to  the  present  con- 
stitutional provisions  of  Illinois  regarding  the  amendment  of  the  con- 
stitution. 


113 


A great  deal  has  of  course  been  said  about  the  initiative  and  refer- 
endum as  minority  government,  under  any  plan  which  provides  for  the 
adoption  of  a measure  without  a majority  of  the  total  vote  at  a general 
election.  Of  course  it  may  be  replied  to  this  that  very  little  of  our  gov- 
ernment in  the  election  of  public  officers  is  majority  government.  A 
plurality  elects  the  highest  state  officers,  as  a plurality  of  the  popular 
vote  has  often  resulted  in  the  election  of  a president.  This  statement 
applies  to  the  heads  of  tickets  who  obtain  the  highest  vote,  the  vote  by 
which,  generally,  the  highest  vote  in  an  election  is  measured,  when  a 
proposed  measure  requires  for  its  adoption  a majority  of  the  total 
vote  in  the  election.  When  examination  is  made  of  those  offices  which 
appear  lower  upon  a ticket  in  a general  election,  it  will  often  be  found 
that  elections  are  determined  by  a plurality  of  the  votes,  and  it  will 
frequently  be  found  that  the  total  vote  for  such  lesser  officers  is  much 
less  than  that  for  the  more  important  offices  in  the  election.  It  is 
probably  true  that  the  majorities  of  many  state  legislatures  are  major- 
ities elected  not  by  a majority  of  the  total  vote  at  a general  election, 
and  it  is  sometimes  true  that  the  majorities  in  state  legislatures  may 
represent  a very  distinct  minority  of  the  total  popular  vote. 

In  view  of  this  fact  there  is  much  plausibility  in  the  statement  that 
a total  affirmative  vote  of  35  per  cent  such  as  is  required  in  Nebraska 
for  the  adoption  of  popular  measures,  represents  fully  as  much  of  a 
popular  expression  as  does  the  voting  upon  candidates  for  the  legis- 
lature. 

However  this  may  be,  it  is  true  that  if  the  initiative  and  refer- 
endum are  to  be  adopted,  to  require  a majority  of  the  highest  vote 
cast  in  a general  election  in  order  to  carry  measures  submitted  to  popu- 
lar vote  is  to  make  such  an  institution  substantially  unworkable.  If 
the  initiative  and  referendum  are  to  be  adopted  and  are  to  be  employed 
as  instruments  of  government  some  other  basis  is  likely  to  be  taken. 

In  this  connection,  reference  should  be  made  to  the  influence  of 
the  form  of  ballot  upon  popular  voting  on  measures.  A full  discus- 
sion of  this  subject  will  be  found  in  the  pamphlet  dealing  with  the 
subject  of  the  amending  article  of  the  constitution.  With  a ballot  such 
as  that  now  used  in  Illinois,  the  requirement  of  a majority  of  those 
voting  at  a general  election  has  the  effect  of  counting  in  the  negative 
all  who  do  not  vote  on  the  question.  However,  it  is  possible  to  devise 
a ballot  which  will  accomplish  precisely  the  opposite  result. 


Emergency  measures  and  the  referendum : Most  of  the  sta'tes 

which  have  the  initiative  and  referendum  make  a distinction  between 
emergency  measures  which  shall  not  be  subject  to  the  referendum  and 
other  measures  which  shall  be  subject  to  the  referendum  upon  petition. 
In  a number  of  cases  legislative  measures  which  are  to  go  into,  effect 
at  once  must  be  adopted  by  higher  legislative  majorities.  The  distinc- 
tion between  emergency  and  other  measures  is  of  course  based  upon 
the  notion  that  other  measures  shall  be  suspended  for  a certain  time 
after  legislative  passage  to  await  a possible  referendum  petition.  In 


114 


a few  cases  *the  plan  has  been  adopted  of  discarding  the  distinction 
between  emergency  and  other  measures,  thus  permitting  all  measure? 
to  come  into  effect  at  once  subject  to  a popular  referendum  which  will 
operate  as  a repeal.  Such  a plan  does  away  with  two  very  serious 
difficulties  under  the  plan  which  contemplates  emergency  measures : 

(a)  The  declaration  of  emergencies  in  cases  where  no  real  emer- 
gency exists  in  order  to  avoid  the  referendum.  In  some  states  this  of 
course  would  not  avoid  the  referendum,  but  would  lead  almost  neces- 
sarily to  litigation  as  to  whether  the  emergency  actually  exists. 

(b)  The  filing  of  a referendum  petition  as  a means  of  delaying 
the  operation  of  a measure  enacted  by  the  legislature,  with  little  or  no 
notion  that  the  measure  would  finally  be  rejected  by  the  people. 

Of  course  the  plan  of  bringing  all  laws  into  operation  at  once, 
subject  merely  to  a repeal  by  means  of  a referendum,  would  be  open  to 
some  abuse  in  that  the  result  sought  by  the  measure  might  be  accom- 
plished before  the  possibility  of  such  repeal.  The  plan  here  referred 
to,  however,  could  be  tied  up  with  a plan  for  special  elections  in  excep- 
tional cases.  There  is  a tendency  to  prohibit  the  use  of  the  referendum 
upon  regular  appropriations,  and  it  is  with  respect  to  regular  appro- 
priations that  the  lapse  of  time  would  in  most  cases  involve  the  accom- 
plishment of  the  purpose  sought  by  the  legislation. 


Relation  between  the  initiative  and  referendum  and  the  regu- 
lar legislature:  The  tables  already  given  indicate  perhaps  with 

sufficient  clearness  that  the  initiative  and  referendum  are  not  in 
any  detailed  way  substitutes  for  the  ordinary  process  of  legislation, 
although  several  of  the  elections  (separately  analyzed)  would  seem  to 
indicate  that  in  certain  instances  this  might  be  the  case. 

For  example,  in  South  Dakota  between  the  years  1899  and  1917, 
two  thousand  five  hundred  and  seventy-three  laws  were  passed, 
whereas  seventy-three  acts  and  constitutional  amendments  were  sub- 
mitted to  a popular  vote,  and  of  these  fifty  were  proposed  constitutional 
amendments,  leaving  but  twenty-three  as  submissions  of  laws,  and  of 
the  laws  submitted  but  eight  were  adopted.  For  the  state  of  Oregon 
between  the  years  1904  and  1919,  two  thousand  six  hundred  and  fifty- 
four  laws  were  passed  by  the  legislature.  During  the  same  period  one 
hundred  and  seventy  measures  were  submitted  to  a popular  vote,  of 
which  eighty  were  proposed  constitutional  amendments,  leaving  but 
ninety  proposed  laws  submitted  to  the  people,  of  which  thirty-five  were 
adopted.  However  there  have  been  some  tendencies  in  the  initiative 
and  referendum  toward  provisions  which  will  necessarily  increase  the 
number  of  measures  to  be  submitted  to  the  people.  In  a number  of 
states  there  has  been  a tendency  to  provide  that  laws  enacted  by  the 
initiative,  and  in  some  cases  that  laws  submitted  to  and  approved  upon 
a referendum,  shall  be  amended  or  repealed  only  upon  the  basis  of  a 
popular  vote.  Repeals  or  amendments  of  such  laws  would  without 
such  a provision  normally  be  subject  to  a popular  vote  if  the  people 
were  sufficiently  interested  to  submit  a referendum  petition,  and  there 


115 


is  a distinct  disadvantage  in  making  it  necessary  to  submit  such  meas- 
ures to  the  people.  Provisions  of  the  sort  just  referred  to  increase  the 
compulsory  referendum ; that  is,  make  a popular  vote  necessary  in 
order  to  accomplish  a certain  purpose,  and  as  has  been  suggested  above, 
the  compulsory  referendum,  as  distinguished  from  the  optional,  is  now 
responsible  for  the  submission,  not  only  of  the  greater  number  of 
measures,  but  also  for  the  submission  to  the  people  of  a great  mass  of 
immaterial  detail  for  whose,  submission  in  a great  number  of  cases 
there  has  been  and  would  have  been  no  popular  demand. 

In  some  states  also  there  is  a tendency  toward  making  the  use  of 
the  initiative  easier  than  the  use  of  the  representative  body.  The 
constitutional  provisions  in  Nebraska,  Arkansas  and  Mississippi  re- 
garding the  adoption  of  constitutional  amendments  make  the  passage 
and  adoption  of  amendments  by  initiative  petitions  substantially  easier 
than  the  adoption  of  such  amendments  upon  the  basis  of  legislative 
proposal.  The  necessary  result  of  this  will  be  to  force  the  use  of  the 
initiative  as  distinguished  from  the  ordinary  legislative  process.  The 
Nevada  constitutional  provision  previously  referred  to  is  one 
which  may  be  construed  as  requiring  a popular  vote  to 
amend  or  repeal  any  act  of  the  legislature  which  has  been 
approved  upon  a popular  referendum,  and  if  so  construed 
would  be  a distinct  means  of  giving  preference  to  a com- 
pulsory popular  vote  upon  measures  as  distinct  from  the  ordinary 
legislative  procedure. 


Relation  between  the  initiative  and  referendum  and  the  con- 
stitution: As  has  already  been  suggested,  the  initiative  and  refer- 

endum provisions  of  Oregon,  Nevada,  Missouri,  Arkansas,  Colorado 
and  Mississippi  permit  the  proposal  and  adoption  of  constitutional 
amendments  through  the  initiative  and  referendum  by  precisely  the 
same  methods  as  are  employed  with  respect  to  the  proposal  and  adop- 
tion of  ordinary  laws.  The  California  constitutional  provisions  for  the 
initiative  and  referendum  make  substantially  no  difference  between  the 
proposal  and  adoption  of  constitutional  amendments  and  of  ordinary 
legislation,  and  little  difference  is  made  by  the  constitution  of  Michigan. 
This  means  that  in  their  formal  aspects  of  proposal  and  adoption  con- 
stitutional amendments  are  in  these  states  placed  upon  the  same  basis 
as  ordinary  legislation.  Not  only  this,  but  the  requirement  in  a 
number  of  states  that  amendments  or  repeals  of  laws  approved  by 
the  people  be  enacted  only  upon  a popular  vote  places  the  amend- 
ment and  repeal  of  such  legislation  upon  substantially  the  same 
basis,  establishing  a compulsory  referendum  for  such  amendments 
and  repeals  in  the  same  manner  as  for  constitutional  amendments. 

Of  course,  the  constitutional  referendum  already  existed  before 
the  adoption  of  the  initiative  and  referendum  for  ordinary  legis- 
lation, but  it  is  possible,  as  has  been  done  in  a number  of  states, 
in  adopting  the  initiative  and  referendum,  to  continue  some  formal 
distinction  between  statutes  and  constitutional  changes. 


116 


Votes  under  a compulsory  referendum  have  steadily  fended 
to  increase  in  this  country,  even  before  the  adoption  of  the  initiative 
and  referendum,  and  this  increase  in  compulsory  referenda,  (that  is, 
in  the  measures  which  must  be  submitted  to  the  people  if  changes 
are  to  be  made)  has  taken  place  primarily  as  a result  of  the  increased 
detail  in  state  constitutions. 

The  briefer  and  less  detailed  a constitution  is,  the  less  frequently 
will ' amendments  be  needed  and  the  more  important  in  fact  such 
amendments  are  likely  to  be,  although  of  course  even  a brief  consti- 
tution will  necessarily  contain  some  matters  requiring  change  and 
such  a constitution  should  not  be  unduly  difficult  to  amend. 

The  placing  of  numerous  details  in  a constitution  has  also  a 
direct  bearing  upon  the  use  of  the  initiative  and  referendum  if  these 
institutions  are  to  be  adopted.  If  details  as  to  a matter  are  placed 
in  the  constitution  and  there  comes  a popular  demand  for  legislation 
in  conflict  with  these  details,  two  steps  must  be  taken  in  order  to 
obtain  such  legislation: 

(1)  If  an  initiative  for  constitutional  change  exists,  or  if  the 
legislature  is  convinced  that  there  should  be  constitutional  change, 
a proposed  amendment  must  first  be  submitted  to  the  people  and 
adopted. 

(2)  The  way  is  then,  and  only  then,  open  for  legislative  action 
or  for  the  use  of  the  initiative  to  propose  legislation.  That  is,  put- 
ting the  detail  in  the  constitution  will  multiply  by  two  the  measures 
which  must  be  submitted  to  a popular  vote,  and  will  hamper  the 
use  of  the  initiative  by  forcing  two  separate  steps  to  accomplish 
the  purpose  desired,  as  distinguished  from  one  if  details  as  to  the 
matter  are  not  included  in  the  text  of  the  constitution. 


Limitation  of  measures  to  be  submitted  to  popular  vote:  It 

has  already  been  suggested  that  if  the  initiative  and  referendum  are 
to  be  adopted,  a limitation  as  to  subject  matter  not  to  be  dealt  with  by 
such  institutions  is  likely  to  prove  undesirable.  At  the  same  time  it  is 
highly  desirable  that  questions  to  be  submitted  to  the  people  either  as 
constitutional  amendments  or  as  laws,  should  be  only  those  of  real 
importance,  and  that  the  number  of  such  submissions  should  not 
be  so  numerous  as  to  make  effective  popular  action  difficult  if  not 
impossible. 

The  tendency  to  increase  compulsory  referenda  has  already  been 
commented  upon,  and  this  tendency  results  both  from  increasing 
detail  in  constitutions,  and  from  the  requirement  of  popular  votes 
with  respect  to  the  amendment  or  repeal  of  measures  approved  by 
the  people. 

It  is  possible  to  reduce  or  limit  the  number  of  measures  to  be 
submitted  to  a popular  vote,  if  the  initiative  and  referendum  are  to 
be  adopted.  Such  a limitation  can  be  accomplished  to  a large  extent 
in  the  following  ways: 


117 


(a)  Reduce  to  as  great  an  extent  as  possible  compulsory  refer- 
enda upon  constitutional  questions,  by  reducing  the  detail  in  consti- 
tutions. 

(b)  Do  not  provide  for  a compulsory  referendum  upon  the 
amendment  or  repeal  of  measures  once  approved  by  a popular  vote, 
but  merely  permit  legislative  amendment  or  repeal  subject,  as  in  other 
cases,  to  a referendum  upon  popular  demand. 

(c)  Do  away  with  the  cases  in  which  constitutions  now  provide 
for  compulsory  referenda  upon  laws,  where  such  compulsory  refer- 
enda have  ceased  to  be  of  any  real  value,  leaving  laws  in  such  cases 
to  an  optional  referendum  upon  popular  petition.  This  statement 
would  apply  to  the  matter  of  banking  legislation  in  this  state. 

(d)  Und^r  initiative  and  referendum  provisions,  do  not  permit 
the  legislature  to  refer  measures  of  its  own  motion.  Such  a refer- 
ence permits  the  legislature  to  shift  responsibility,  and  under  an  in- 
itiative and  referendum  provision,  if  there  should  be  a popular  demand 
for  submission,  this  can  be  had  by  a popular  petition  without  the  need 
for  submission  by  the  legislature  itself.  However,  legislative  powrer 
to  submit  measures  has  not  been  freely  exercised  in  the  states  where 
it  exists. 

(e)  A large  amount  of  popular  voting  could  probably  be  avoided 
by  an  indirect  initiative  with  a possibility  of  legislative  deliberation 
and  action  before  a measure  shall  be  submitted  to  the  people.  In 
such  cases  it  is  probable  that  the  legislative  action  would  oftentimes 
at  least  meet  popular  approval  without  the  need  for  further  popular 
action. 


Comments  upon  initiative  and  referendum  provisions  in  the 
constitutions:  There  has  been  a tendency  toward  greater  detail 

in  the  constitutional  provisions  for  the  initiative  and  the  referendum. 
The  Massachusetts  constitutional  amendment  adopted  in  1918  is  a 
striking  example  of  this,  and  it  seems  probable  that  a number  of 
judicial  decisions  will  be  necessary  before  all  points  regarding  the 
working  of  this  amendment  are  clear.  Constitutional  provisions  like 
those  of  Oregon  (1902,  1906),  and  of  North  Dakota  (1918)  leave 
the  detail  to  be  worked  out  by  legislation,  and  appear  to  be  more 
satisfactory  than  does  the  method  of  trying  to  put  all  of  the  detail 
into  the  constitution  itself. 

In  Utah  and  Idaho  the  constitutional  provisions  merely  author- 
ize legislation  to  provide  for  the  initiative  and  the  referendum.  Con- 
stitutional provisions  of  this  character  would  pretty  clearly  not  meet 
the  desires  of  those  favoring  the  initiative  and  referendum,  and  these 
persons  can  as  an  argument  point  to  the  fact  that  the  Utah  amend- 
ment was  adopted  in  1900,  but  was  not  made  effective  by  legislation 
until  1917,  while  the  Idaho  amendment  adopted  in  1912  has  not  yet 
been  put  into  operation  by  legislative  action. 

The  constitutional  amendments  regarded  as  most  typical  of  the 
different  types  of  the  initiative  and  referendum  are  printed  in  an 


118 


appendix  to  this  pamphlet.  These  amendments  are  those  of  Utah, 
Oregon,  North  Dakota,  Nebraska,  Michigan,  Ohio  and  Massachu- 
setts. 

The  Wisconsin  proposed  amendment  which  was  rejected  in  1914 
is  also  given  in  the  appendix,  together  with  the  final  form  in  which 
a proposed  Illinois  amendment  was  voted  upon  by  the  House  of 
Representatives  in  1913.  A possible  combination  may  be  made  of 
elements  from  the  Wisconsin  and  Illinois  proposals,  and  a tentative 
draft  of  such  a combination  is  also  presented  in  the  appendix.  The 
presentation  of  this  draft  implies  no  view  in  favor  of  or  against  it 
or  with  respect  to  the  initiative  and  referendum  in  general,  but  the 
draft  is  submitted  merely  in  order  that  the  various  phases  of  the 
subject  may  be  put  in  concrete  form.  If  the  adoption  of  the  indirect 
initiative  is  to  be  considered,  the  Wisconsin  plan  has  advantages  over 
that  of  Ohio.  There  is  no  difficulty  whatever  about  obtaining  the 
introduction  of  a bill  in  the  general  assembly,  and  to  require  a peti- 
tion for  this  purpose  seems  unnecessary,  although  a popular  petiton 
in  such  a case  does  accomplish  the  purpose  of  establishing  a different 
status  for  a bill  so  presented,  and  the  two  methods  of  introduction 
into  the  general  assembly  could  be  adopted  if  this  were  desired. 


119 


VIII.  RECALL  OF  JUDICIAL  DECISIONS. 


Colorado  is  the  only  state  which  has  adopted  a recall  of  judi- 
cial decisions,  and  since  1912  there  seems  to  have  been  relatively 
little  popular  interest  in  such  a proposal.  In  fact,  the  recall  of  judicial 
decisions  as  adopted  in  Colorado  does  nothing  which  cannot  be  ac- 
complished by  a relatively  simple  amending  clause,  and  it  is  probably 
for  this  reason  that  little  use  has  been  found  for  such  a provision. 
In  view  of  this  fact  it  is  unnecessary  to  do  more  than  to  call  attention 
to  the  existence  of  the  Colorado  provision  and  to  the  fact  that  it 
has  not  been  used  since  its  adoption. 

The  recall  of  judicial  decisions  is,  as  provided  for  in  Colorado, 
merely  an  adaptation  of  the  referendum,  the  people  by  a petition  re- 
quiring a popular  vote  upon  a law  found  unconstitutional  by  the  su- 
preme court,  and  the  law  upon  a favorable  popular  vote  standing  inde- 
pendently of  the  judicial  decision.  Substantially  what  the  popular 
vote  does  is  to  create  an  exception  from  the  constitution  as  inter- 
preted by  the  supreme  court  with  respect  to  the  particular  law  voted 
upon,  and  to  this  extent  amending  the  constitution. 

Numerous  cases  have  occurred  and  will  probably  continue  to 
occur  in  which  the  constitution  as  construed  by  the  highest  state  court 
does  not  meet  the  popular  needs  and  in  which  a constitutional  amend- 
ment is  proposed  and  adopted  with  respect  to  such  a matter.  Amend- 
ing the  constitution  has  an  advantage  over  the  recall  of  judicial  de- 
cisions in-  that  it  deals  not  merely  with  the  specific  law  in  dispute, 
but  with  the  principle  underlying  the  legislation ; and  also  in  that  it 
makes  a specific  change  in  the  terms  of  the  constitution  itself.  If  a 
recall  of  judicial  decisions  were  employed,  it  would  be  difficult  for 
a court  to  know  to  what  extent  if  any  it  was  intended  to  lay  down 
a rule  for  the  future,  or  for  a law  upon  the  same  subject  different  in 
text  or  in  policy.  In  the  table  dealing  with  the  recall  upon  page 
120  will  be  found  an  outline  of  the  Colorado  provision  for  the  recall 
of  judicial  decisions. 


120 


IX.  RECALL  OF  OFFICERS. 


The  recall  of  public  officers  was  adopted  by  Oregon  in  1908, 
but  first  became  an  issue  of  distinct  popular  interest  when  it  was 
placed  in  the  proposed  Arizona  constitution.  Congress  required  that 
the  provision  for  the  recall  of  officers  in  the  Arizona  constitution  be 
amended  by  the  exclusion  of  judges  before  that  state  should  be  ad- 
mitted into  the  Union  and  such  an  amendment  was  made.  Immed- 
iately after  admission,  however,  the  provision  with  respect  to  the 
recall  of  judges  was  again  placed  in  the  constitution  of  Arizona. 

The  table  given  below  indicates  the  development  of  the  recall  and 
the  extent  to  which  it  has  been  applied  to  judicial  offices.  Appli- 
cation to  judicial  offices  has  been  the  primary  point  of  contention 
in  connection  with  the  development  of  the  recall.  The  recall  was 
rejected  in  Wisconsin  and  Minnesota  in  1914.  In  Arkansas  a recall 
amendment  was  adopted  by  popular  vote  in  1912,  but  was  declared 
invalid  by  the  supreme  court  of  that  state  on  the  ground  that  the 
number  of  constitutional  amendments  submitted  exceeded  that  per- 
mitted by  the  constitution. 


Recall. 


State. 

Date. 

To  whom  applicable. 

Petition. 

Oregon. 

1908. 

“Every  public  officer”. 

25%. 

California. 

1911. 

“Every  elective  public  officer.” 

12%. 

5 counties  for 
state  officer ; 
20%  for  lo- 
cal officer. 

Arizona. 

1911,  1912. 

Public  officers  holding  elective  of- 
fice. 

25%. 

Colorado. 

1912. 

“Recall  of  judicial  decisions”. 

5%. 

Colorado. 

1912. 

Elective  officers. 

25%. 

Idaho. 

1912 

directory. 

Not  to  apply  to  judicial  officers. 

No  law  yet  en- 
acted. 

Nevada. 

1912. 

Every  public  officer. 

25%. 

Washington 

1912. 

Except  judges. 

25%  and  35%. 

Michigan. 

1913. 

Except  judges. 

25%. 

Kansas. 

1914. 

Every  public  officer  holding  either 
by  election  or  appointment. 

10%. 

15%. 

25%. 

Louisiana. 

1914. 

Except,  judges. 

25% 

121 


In  an  appendix  to  this  pamphlet  is  printed  the  text  of  the  Cali- 
fornia constitutional  provision  with  respect  to  the  recall.  These  pro- 
visions illustrate  perhaps  sufficiently  the  constitutional  provisions  with 
respect  to  the  recall,  although  the  California  provision  is  somewhat 
more  carefully  safeguarded  than  are  the  provisions  of  Oregon,  Ari- 
zona and  some  other  states. 

The  recall  of  public  officers  has  been  used  in  a number  of  cases 
with  respect  to  local  officers.  A review  of  the  cases  in  which  it  has 
been  employed  in  the  state  of  Oregon  will  be  found  in  Barnett’s 
Initiative , Referendum  and  Recall  in  Oregon. 

The  recall  has  been  introduced  by  statute  in  a number  of  states, 
particularly  in  connection  with  the  commission  form  of  city  govern- 
ment. A detailed  analysis  of  the  cases  in  which  the  recall  has  been 
introduced  and  in  which  it  has  been  used  will  be  found  in  the  Octo- 
ber, 1916,  number  of  Equity. 

Equity  is  a quarterly  magazine  (recently  discontinued),  devoted 
primarily  to  the  initiative,  referendum  and  recall.  On  the  basis  of  a 
careful  survey  of  the  working  of  the  recall  this  journal  in  1916  made 
the  following  comment : 

“In  these  reports  to  Equity  there  are  more  often  complaints 
about  the  operation  of  the  recall  than  about  the  initiative  and  refer- 
endum. Almost  invariably  the  complaints  refer  to  the  efforts  of  a 
defeated  political  group  to  make  trouble  for  a successful  candidate 
where  the  rule  requires  the  incumbent’s  name  on  the  ballot  with 
rival  candidates,  instead  of  having  the  recall  proposition  placed  on 
the  ballot  by  itself,  to  be  voted  on  “yes”  or  “no”.  In  the  latter  plan 
the  names  of  the  candidates  appear  on  the  ballot  of  the  Recall  propo- 
sition and,  of  course,  the  incumbent’s  name  does  not  appear  among 
them,  as  his  name  is  involved  only  in  the  recall  proposition.  The 
result  of  the  voting  on  candidates  is  considered  only  in  the 
event  that  a majority  is  found  to  be  for  the  recall  of  the  in- 
cumbent, thus  creating  a vacancy  in  the  office.  The  object  of  thus 
having  the  recall  proposition  on  the  same  ballot  with  candidates  is 
to  obviate  the  expense  and  delay  of  holding  a separate  election. 

“The  action  of  a defeated  minority  is  not  invariably  due  to  petty 
or  corrupt  motives.  Without  doubt  there  is  justification  in  most 
instances  for  such  persistent  activity  of  a minority,  especially  if  it 
believes  itself  to  have  been  defeated  by  corrupt  means.  However,  it 
is  highly  prejudicial  to  the  proper  function  and  purpose  of  the  re- 
call to  have  available  any  such  plan  as  will  enable  a defeated  group 
to  force  a new  election  on  the  basis  of  rival  candidates  without  an 
opportunity  to  vote  on  the  merits  of  the  incumbent’s  administration. 

“In  thirteen  states  the  municipal  recall  plan  of  operation  is  to 
have  the  name  of  the  incumbent  official,  whose  recall  is  sought,  placed 
on  the  recall  ballot  along  with  the  other  candidates  nominated,  and 
the  one  receiving  the  highest  vote  to  be  declared  elected.  This  plan 
is  not  in  any  true  sense  a recall  election,  for  the  question  of  recalling 
the  incumbent  official  is  not  directly  voted  on  at  all.  This  is  in  effect 
a new  election  forced  upon  the  community  under  the  guise  and 
subterfuge  of  a recall  election.  We  cannot  too  emphatically  condemn 


122 


this  misnamed  recall  process,  which  has  gained  acceptance  in  a ma- 
jority of  the  states  authorizing  the  recall.  We  believe  that  in  most 
cases  this  plan  has  been  adopted  unwittingly  by  men  who  did  not 
duly  consider  what  they  were  doing,  but  who  merely  copied  the  pro- 
cess which  had  found  lodgment  in  the  law  of  some  other  state  or  city. 

“This  situation  is  not  possible  in  a city  whose  charter  provides 
for  the  submission  of  a recall  proposition  separate  and  distinct  from 
the  process  for  obtaining  a successor  to  the  incumbent  official  in  case 
he  is  recalled.  This  plan  is  required  in  the  laws  of  four  states 
(Colorado,  Mississippi,  Missouri  and  Ohio),  and  is  common  to  special 
home  rule  charters  in  California  and  several  other  states.  In  some 
cities  the  successor,  in  case  the  recall  carries,  is  appointed  by  the 
governor  of  the  state.  But  generally  a special  election  is  held  to 
elect  a successor.  In  several  states  the  plan  is  to  have  the  candidates 
(but  not  the  incumbent  official)  on  the  same  ballot  with  the  recall 
proposition,  the  one  getting  the  highest  vote,  to  be  the  successor  only 
in  the  event  that  a majority  favors  the  recall. 

“A  large  number  of  charters  and  some  state  laws  make  a newly- 
elected  official  immune  from  the  recall  for  a definite  period,  in  some 
cases  six  months  and  in  a few  instances  as  long  as  a year.  It  may 
be  mentioned  here  that  in  many  charters  a penalty  is  imposed  upon 
any  recalled  official  by  barring  him  from  any  public  office  for  one 
or  two  years. 

“To  Oregon,  which  created  the  first  successful  system  of  the 
state-wide  initiative,  referendum  and  recall,  belongs  the  responsi- 
bility for  having  first  introduced  this  perverted  recall  election  pro- 
cess, in  which  the  name  of  the  incumbent  official  appears  on  the 
ballot  as  a candidate  for  re-election.  Hence  this  plan  is  often  spoken 
of  as  the  ‘Oregon  plan’.  The  correct  and  efficient  plan  of  having 
the  recall  proposition  submitted  separately  first  gained  its  prominence 
in  certain  municipalities  of  California.  Hence  it  is  known  as  the 
‘California  plan’  ”. 


123 


APPENDIX  No.  1. 


Beard,  C.  A.,  and  Schultz,  B.  E.,  Documents  on  the  state-wide  initia- 
tive, referendum  and  recall.  Macmillan,  New  York,  1912.  Con- 
tains substantially  all  important  documents  bearing  upon  the  init- 
iative and  referendum  to  the  year  1911.  The  introductory  note 
is  important. 

Annals  of  the  American  Academy  of  Political  and  Social  Science. 
Special  issue  of  September,  1912,  devoted  to  the  initiative,  refer- 
endum and  recall.  Some  of  the  articles  are  of  distinct  value. 

Lowell,  A.  L.,  Public  Opinion  and  Popular  Government.,  Longmans, 
New  York,  1914.  A large  part  of  this  work  is  devoted  to  the 
initiative  and  referendum.  Appendices  contain  tables  of  votes 
on  measures  in  Switzerland  and  in  the  United  States. 

Munro,  W.  B.,  Editor,  The  Initiative,  Referendum  and  Recall,  Apple- 
ton,  New  York,  1912.  A collection  of  articles  from  different 
points  of  view. 

Oberholtzer,  E.  P.,  the  initiative,  referendum  and  recall  in  America, 
Scribners,  New  York,  1911.  An  important  work  with  supple- 
mentary chapters  covering  the  period  from  1900  to  1910.  The 
supplementary  chapters  are  much  more  hostile  to  the  initiative 
and  referendum  than  the  original  work. 

Massachusetts  constitutional  convention,  1917,  Bulletin  No.  6,  the  in- 
itiative and  referendum,  Boston,  1917. 

Gardner,  C.  O.,  working  of  the  state-wide  referendum  in  Illinois, 
American  Political  Science  Review,  Vol.  5,  page  394  (August, 
1911). 

Massachusetts  constitutional  convention,  1917-18,  debates,  Vol.  II, 
Initiative  and  Referendum. 

Upon  the  initiative  and  referendum  in  Oregon  a number  of  spe- 
cific studies  have  been  made.  The  most  valuable  of  these  are  the  fol- 
lowing : 

Barnett,  J.  D.,  the  operation  of  the  initiative,  referendum  and  recall 
in  Oregon,  Macmillan,  New  York,  1915.  The  only  careful  study 
of  the  operation  of  the  initiative  and  referendum  and  recall  in  a 
single  state. 

Montague,  R.  W.,  the  Oregon  system  at  work.  The  National  Munici- 
pal Review,  April,  1914. 

Holman,  F.  V.,  the  unfavorable  results  of  direct  legislation  in  Oregon, 
Chapter  11  of  the  “Initiative,  Referendum  and  Recall edited  by 
W.  B.  Munro. 


124 


APPENDIX  No.  2.  TEXTS  OF  INITIATIVE  AND  REFER- 
ENDUM PROVISIONS. 


1.  Utah  Constitutional  Amendment  (1900). 

Article  VI,  Section  1.  Power  vested  in  Senate,  House  and  Peo- 
ple. The  legislative  power  of  the  State  shall  be  vested : 

(1)  In  a Senate  and  House  of  Representatives,  which  shall  be 
designated  the  Legislature  of  the  State  of  Utah. 

(2)  In  the  people  of  the  State  of  Utah  as  hereinafter  stated: 

The  legal  voters  or  such  fractional  part  thereof  of  the  State  of 

Utah,  as  may  be  provided  by  law,  under  such  conditions  and  in  such 
manner  and  within  such  time  as  may  be  provided  by  law,  may  initiate 
any  desired  legislation  and  cause  the  same  to  be  submitted  to  a vote 
of  the  people  for  approval  or  rejection,  or  may  require  any  law  passed 
by  the  Legislature  (except  those  laws  passed  by  a two-thirds  vote  of 
the  members  eUcted  to  each  house  of  the  Legislaure)  to  be  sub- 
mitted to  the  voters  of  the  State  before  such  law  shall  take  effect. 

'The  legal  voters,  or  such  fractional  part  thereof,  as  may  be  pro- 
vided by  law,  of  any  legal  subdivision  of  the  State,  under  such  con- 
ditions and  in  such  manner  and  within  such  time  as  may  be  provided 
by  law,  may  initiate  any  desired  legislation  and  cause  the  same  to  be 
submitted  to  a vote  of  the  people  of  said  legal  subdivision  for  approval 
or  rejection,  or  may  require  any  law  or  ordinance  passed  by  the  law- 
making body  of  said  legal  subdivision  to  be  submitted  to  the  voters 
thereof  before  such  law  or  ordinance  shall  take  effect. 


2.  Oregon  Constitutional  Amendments  ((1902,  1906). 

Article  IV,  Section  1.  Legislative  Authority — Style  of  Bill — 
Initiative  and  Referendum.  The  legislative  authority  of  the  state 
shall  be  vested  in  a legislative  assembly,  consisting  of  a senate  and 
house  of  representatives,  but  the  people  reserve  to  themselves  power 
to  propose  laws  and  amendments  to  the  constitution  and  to  enact  or 
reject  the  same  at  the  polls,  independent  of  the  legislative  assembly, 
and  also  reserve  power  at  their  own  option  to  approve  or  reject  at  the 
polls  any  act  of  the  legislative  assembly.  The  first  power  reserved  by 
the  people  is  the  initiative,  and  not  more  than  eight  per  cent  of  the 
legal  voters  shall  be  required  to  propose  any  measure  by  such  petition, 
and  every  such  petition  shall  include  the  full  text  of  the  measure  so 
proposed.  Initiative  petitions  shall  be  filed  with  the  secretary  of 
state  not  less  than  four  months  before  the  election  at  which  they  are  to 
be  voted  upon.  The  second  power  is  the  referendum,  and  it  may  be 


125 


ordered  (except  as  to  laws  necessary  for  the  immedate  preservation 
of  the  public  peace,  health  or  safety),  either  by  the  petition  signed  by 
five  per  cent  of  the  legal  voters,  or  by  the  legislative  assembly,  as  other 
bills  are  enacted.  Referendum  petitions  shall  be  filed  with  the  secre- 
tary of  state  not  more  than  ninety  days  after  the  final  adjournment  of 
the  session  of  the  legislative  assembly  which  passed  the  bill  on  which 
the  referendum  is  demanded.  The  veto  power  of  the  governor  shall 
not  extend  to  measures  referred  to  the  people.  All  elections  on  meas- 
ures referred  to  the  people  of  the  state  shall  be  had  at  the  biennial 
regular  general  elections,  except  when  the  legislative  assembly  shall 
order  a special- election.  Any  measure  referred  to  the  people  shall 
take  effect  and  become  the  law  when  it  is  approved  by  a majority  of 
the  votes  cast  thereon,  and  not  otherwise.  The  style  of  all  bills  shall 
be : “Be  it  enacted  by  the  people  of  the  state  of  Oregon”.  This  section 
shall  not  be  construed  to  deprive  any  member  of  the  legislative  assem- 
bly of  the  right  to  introduce  any  measure.  The  whole  number  of 
votes  cast  for  justice  of  the  supreme  court  at  the  regular  election  last 
preceding  the  filing  of  any  petition  for  the  initiative  or  for  the  refer- 
endum shall  be  the  basis  on  which  the  number  of  legal  voters  neces- 
sary to  sign  such  petition  shall  be  counted.  Petitions  and  orders  for 
the  initiative  and  for  the  referendum  shall  be  filed  with  the  secretary 
of  state,  and  in  submitting  the  same  to  the  people  he,  and  all  other 
officers,  shall  be  guided  by  the  general  laws  and  the  act  submitting 
this  amendment,  until  legislation  shall  be  especially  provided  therefor. 

Sec.  la.  Initiative  and  Referendum  on  Local,  Special,  and  Mu- 
nicipal Laws  and  Parts  of  Laws.  The  referendum  may  be  demanded 
by  the  people  against  one  or  more  items,  sections,  or  parts  of  any 
act  of  the  legislative  assembly  in  the  same  manner  in  which  such 
power  may  be  exercised  against  a complete  act.  The  filing  of  a 
referendum  petition  against  one  or  more  items,  sections,  or  parts 
of  an  act  shall  not  delay  the  remainder  of  that  act  from  becoming 
operative.  The  initiative  and  referendum  powers  reserved  to  the 
people  by  this  constitution  are  hereby  further  reserved  to  the  legal 
voters  of  every  municipality  and  district,  as  to  all  local,  special,  and 
municipal  legislation,  of  every  character,  in  or  for  their  respective 
municipalities  and  districts.  The  manner  of  exercising  said  pow- 
ers shall  be  prescribed  by  general  laws,  except  that  cities  and  towns 
may  provide  for  the  manner  of  exercising  the  initiative  and  refer- 
endum powers  as  to  their  municipal  legislation.  Not  more  than  ten 
per  cent  of  the  legal  voters  may  be  required  to  order  the  referen- 
dum nor  more  than  fifteen  per  cent  to  propose  any  measure,  by  the 
initiative,  in  any  city  or  town. 


Oregon  Statutes. 

Section  3470.  The  following  shall  be  substantially  the  form 
of  petition  for  the  referendum  to  the  people  on  any  act  passed  by  the 
legislative  assembly  of  the  state  of  Oregon,  or  by  a city  council : 


126 


WARNING. 

It  is  a felony  for  any  one  to  sign  any  initiative  or  referendum 
petition  with  any  name  other  than  his  own,  or  to  knowingly  sign 
his  name  more  than  once  for  the  same  measure,  or  to  sign  such  peti- 
tion when  he  is  not  a legal  voter. 

PETITION  FOR  REFERENDUM. 

To  the  honorable secretary  of 

state  for  the  state  of  Oregon  (or  to  the  honorable 

clerk,  auditor,  or  recorder,  as  the  case  may  be,  of  the  city  of.  .... . 

;)• 

We,  the  undersigned  citizens  and  legal  voters  of  the  state  of 


Oregon  (and  the  district  of , county  of 

, or  city  of , as 


the  case  may  be),  respectfully  order  that  the  senate  (or  house)  bill 

No entitled  (title  act  of,  and  if  the  petition  is 

against  less  than  the  whole  act  then  set  forth  here  the  part  or  parts 

on  which  the  referendum  is  sought),  passed  by  the 

legislative  assembly  of  the  state  of  Oregon  at  the  regular  (special) 
session  of  said  legislative  assembly,  shall  be  referred  to  the  people 

of  the  state  (district  of . , county  of , 

or  city  of , as  the  case  may  be),  for  their  approval 

or  rejection,  at  the  regular  (special)  election  to  be  held  on  the 

day  of A.  D.  19.  .,  and  each  for  himself  says:  I have  per- 

sonally signed  this  petition ; I am  a legal  voter  of  the  state  of  Oregon, 

and  (district  of , County  of. , City  of 

, as  the  case  may  be)  ; my  residence  and  post 

office  are  correctly  written  after  my  name. 

Name Residence 

Post  Office  

(If  in  a city,  street  and  number) 

(Here  follow  twenty  numbered  lines  for  signatures)  (1907). 

Sec.  3471.  The  following  shall  be  substantially  the  form  of  peti- 
tion for  any  law,  amendment  to  the  constitution  of  the  state  of 
Oregon,  city  ordinance  or  amendment  to  a city  charter  proposed  by 
the  initiative : 

WARNING. 

It  is  a felony  for  any  one  to  sign  any  initiative  or  referendum 
petition  with  any  name  other  than  his  own,  or  to  knowingly  sign  his 
name  more  than  once  for  the  measure,  or  to  sign  such  petition  when 
he  is  not  a legal  voter. 

INITIATIVE  PETITION. 

To  the  honorable secretary  of  state  for  the  state 


of  Oregon  (or  to  the  honorable clerk,  auditor 

or  recorder,  as  the  case  may  be,  for  the  city  of ) : 


We,  the  undersigned  citizens  and  legal  voters  of  the  state  of 

Oregon  (and  of  the  district  of , county  of 

or  city  of , as  the  case  may  be),  respectfully  de- 

mand that  the  following  proposed  law  (or  amendment  to  the  consti- 
tution, ordinance,' or  amendment  to  the  city  chatter,  as  the  case  may 


127 


be),  shall  be  submitted  to  the  legal  voters  of  the  state  of  Oregon 

(district  of , county  of or  city 

of as  the  case  may  be),  for  their  approval  or 

rejection  at  the  regular,  general  election,  or  (regular  or  special  city 

election),  to  be  held  on  the day  of . . , A.  D. 

19..,  and  each  for  himself  says:  I have  personally  signed  this  peti- 
tion ; I am  a legal  voter  of  the  state  of  Oregon  (and  of  the  district 

of , county  of , city  of 

as  the  case  may  be)  ; my  residence  and  post-office  are  correctly  writ- 
ten after  my  name. 

Name *. Residence 

Post  Office  

(If  in  a city,  street  and  number) 

(Here  follow  twenty  numbered  lines  for  signatures)  (1907) 

Sec.  3-172.  Before  or  at  the  time  of  beginning  to  circulate  any 
petition  for  the  referendum  to  the  people  on  any  act  passed  by  the 
legislative  assembly  of  the  state  of  Oregon,  or  for  any  law,  amend- 
ment to  the  constitution  of  the  state  of  Oregon,  city  ordinance  or 
amendment  to  a city  charter,  proposed  by  the  initiative,  the  person  or 
persons  or  organization  or  organizations  under  whose  authority  the 
measure  is  to  be  referred  or  initiated  shall  send  or  deliver  to  the 
secretary  of  state,  or  city  clerk,  recorder  or  auditor,  as  the  case  may 
be,  a copy  of  such  petition  duly  signed  which  shall  be  filed  by  said 
officer  in  his  office,  who  shall  immediately  examine  the  same  and 
specify  the  form  and  kind  and  size  of  paper  on  which  such  petition 
shall  be  printed  for  circulation  for  signatures. 

To  every  sheet  of  petitioners’  signatures  shall  be  attached  a full 
and  correct  copy  of  the  measure  so  proposed  by  initiative  petition ; 
but  such  petition  may  be  filed  by  the  secretary  of  state  in  numbered 
sections  for  convenience  in  handling.  Each  sheet  of  petitioners’  sig- 
natures upon  referendum  petitions  shall  be  attached  to  a full  and 
correct  copy  of  the  measure  on  which  the  referendum  is  demanded  and 
may  be  filed  in  numbered  sections  in  like  manner  as  initiative  peti- 
tions. Not  more  than  20  signatures  on  one  sheet  shall  be  counted. 
When  any  such  initiative  or  referendum  petition  shall  be  offered  for 
filing  the  secretary  of  state  shall  detach  the  sheets  containing  the  sig- 
natures and  affidavits  and  cause  them  all  to  be  attached  to  one  or 
more  printed  copies  of  the  measure  so  proposed  by  initiative  or  refer- 
endum petitions : provided,  all  petitions  for  the  initiative  and  for 
the  referendum  and  sheets  for  signatures  shall  be  printed  on  a good 
quality  of  bond  or  ledger  paper  on  pages  8*4  inches  in  width  by  13 
inches  in  length,  with  a margin  of  1^4  inches  at  the  top  of  binding; 
if  the  aforesaid  sheets  shall  be  too  bulky  for  convenient  binding  in 
one  volume,  they  may  be  bound  in  two  or  more  volumes,  those  in 
each  volume  to  be  attached  to  a single  printed  copy  of  such  measure. 
If  any  such  measure  shall,  at  the  ensuing  election,  be  approved  by 
the  people,  then  the  copies  thereof  so  preserved,  with  the  sheets  and 
signatures  and  affidavits,  and  a certified  copy  of  the  Governor’s  proc- 
lamation declaring  the  same  to  have  been  approved  by  the  people,  shall 
be  bound  together  in  such  form  that  they  may  be  conveniently  identi- 


128 


fied  and  preserved.  The  secretary  of  state  shall  cause  every  such 
measure  so  approved  by  the  people  to  be  printed  with  the  general 
laws  enacted  by  the  next  ensuing  session  of  the  legislative  assembly, 
with  the  date  of  the  governor’s  proclamation  declaring  the  same  to 
have  been  approved  by  the  people.  This  act  shall  not  apply  to  the  gen- 
eral laws  governing  the  method  of  determining  whether  stock  of  any 
kind  shall  be  permitted  to  run  at  large  in  any  county  or  portion 
thereof,  nor  to  the  provisions  of  the  local  option  liquor  laws  provid- 
ing methods  of  determining  the  sale  of  intoxicating  liquors  shall  be 
prohibited  in  any  county,  city,  precinct,  ward  or  district.  (As  amended 
by  Laws,  1913,  ch.  359,  Sec.  1). 

Sec.  3473.  Each  and  every  sheet  of  every  such  petition  contain- 
ing signatures  shall  be  verified  on  the  face  thereof  in  substantially  the 
following  form,  by  the  person  who  circulated  said  sheet  of  said  peti- 
tion, by  his  or  her  affidavit  thereon,  and  as  a part  thereof : 

State  of  Oregon, 


County  of J 

I,  , being  first  duly  sworn,  say : That 


every  person  who  signed  this  sheet  of  the  foregoing  petition  signed  his 
or  her  name  thereto  in  my  presence ; I believe  that  each  has  stated  his 
or  her  name,  postoffice  address  and  residence  correctly,  and  that  each 

signer  is  a legal  voter  of  the  State  of  Oregon  and  county  of 

(Signature  and  postoffice  address  of  affiant.) 

Subscribed  and  sworn  to  before  me  this day  of 

A.  D.  19 

(Signature  and  title  of  officer  before  whom  oath  is  made  and  his 
postoffice  address.) 

In  addition  to  said  affidavit  the  county  clerk  of  each  county  in 
which  any  such  petition  shall  be  signed  shall  compare  the  signatures 
of  the  electors  signing  the  same  with  the  signatures  of  the  registration 
cards,  books  and  blanks  on  file  in  his  office,  shall  carefully  examine 
said  petition  and  shall  attach  to  the  sheets  of  said  petition  containing 
such  signatures,  his  certificate  to  the  Secretary  of  State,  substantially 
as  follows : 

■ State  of  Oregon, 

County  of. 

To  the  Honorable , Secretary  of  State  of  the  State  of 

Oregon : 

I, , county  clerk  of  the  county  of 

hereby  certify  that  I have  compared  the  signatures  on  (number  of 
sheets)  of  the  referendum  (initiative)  petition  attached  hereto,  with 
the  signatures  of  said  electors  as  they  appear  on  the  registration  cards, 
books  and  blanks  in  my  office,  and  from  such  information  as  I have 
been  able  to  obtain  I believe  that  the  signatures  of  (names  of  signers) 
numbering  (number  of  genuine  signatures)  are  genuine.  As  to  the 
remainder  of  the  signatures  thereon,  I believe  they  are  not  genuine, 


129 


except  that  the  following  names  ( ) , do  not  appear  on  the 

registration  cards,  books  and  blanks  in  my  office. 

(Signed)  (County  Clerk.) 

(Seal  of  Office)  (Deputy.) 

Every  such  certificate  shall  be  prima  facie  evidence  of  the  facts 
stated  therein  and  of  the  qualifications  of  the  electors  whose  signatures 
are  thus  certified  to  be  genuine,  and  the  Secretary  of  State  shall  con- 
sider and  count  only  such  signatures  on  such  petitions  as  shall  be  so 
certified  by  said  county  clerk  to  be  genuine ; provided,  that  the  Secre- 
tary of  State  shall  consider  and  count  such  of  the  remaining  signatures 
as  shall  be  proved  to  be  the  genuine  signatures  of  legal  voters.  To 
establish  such  facts,  the  official  certificate  of  a notary  public  of  the 
county  in  which  the  signer  resides  shall  be  required  as  to  the  facts  for 
each  of  such  last  named  signatures. 

State  of  Oregon, 


County  of J 

I,  , a duly  qualified  and  acting  notary  public 


in  and  for  the  above  named  county  and  State,  do  hereby  certify: 
That  I am  personally  acquainted  with  each  of  the  following  named 
electors  whose  signatures  are  affixed  to  the  annexed  petition  and  I 
know  of  my  own  knowledge  that  they  are  legal  voters  of  the  State 
of  Oregon  and  of  the  county  written  after  their  several  names  in 
the  annexed  petition,  and  that  their  residence  and  postoffice  address 
is  correctly  stated  therein  to-wit : (names  of  such  electors). 

In  testimony  whereof,  I have  hereunto  set  my  hand  and  official 
seal  this day  of , 19.... 

(Notary  Public  for  Oregon) 

The  county  clerk  shall  not  retain  in  his  possession  any  such 
petition  or  any  part  thereof  for  a longer  period  than  two  days  for 
the  first  two  hundred  signatures  thereon,  and  one  additional  day  for 
each  two  hundred  additional  signatures  or  fraction  thereof,  on  the 
sheets  presented  to  -him,  and  at  the  expiration  of  such  time  he  shall 
deliver  the  same  to  the  person  from  whom  he  received  it,  with  his 
certificate  attached  thereto  as  above  provided.  The  forms  herein 
given  are  not  mandatory  and  if  substantially  followed  in  any  peti- 
tion, it  shall  be  sufficient,  disregarding  clerical  and  merely  technical 
errors.  (As  amended  by  Laws,  1917,  ch.  176,  Sec.  1). 

Sec.  3474.  If  the  secretary  of  state  shall  refuse  to  accept  and 
file  any  petition  for  the  initiative  or  for  the  referendum  any  citizen 
may  apply,  within  ten  days  after  such  refusal,  to  the  circuit  court 
for  a writ  of  mandamus  to  compel  him  to  do  so.  If  it  shall  be  de- 
cided by  the  court  that  such  petition  is  legally  sufficient,  the  secre- 
tary of  state  shall  then  file  it,  with  a certified  copy  of  the  judgment 
attached  thereto,  as  of  th-e  date  on  which  it  was  originally  offered 
for  filing  in  his  office.  On  a showing  that  any  petition  filed  is  not 
legally  sufficient,  the  court  may  enjoin  the  secretary  of  state  and  all 
other  officers  from  certifying  or  printing  on  the  official  ballot  for 
the  ensuing  election  the  ballot  title  and  numbers  of  such  measure.  All 


130 


such  suits  shall  be  advanced  on  the  court  docket  and  heard  and  de- 
cided by  the  court  as  quickly  as  possible.  Either  party  may  appeal 
to  the  supreme  court  within  ten  days  after  the  decision  is  rendered. 
The  circuit  court  of  Marion  county  shall  have  jurisdiction  in  all 
cases  of  measures  to  be  submitted  to  the  electors  of  the  state  at 
large;  in  cases  of  local  and  special  measures,  the  circuit  court  of  the 
county,  or  of  one  of  the  counties  in  which  such  measures  are  to 
be  voted  upon,  shall  have  jurisdiction;  in  cases  of  municipal  legisla- 
tion the  circuit  court  of  the  county  in  which  the  city  concerned  is 
situated  shall  have  jurisdiction  (1907). 

Sec.  3475.  When  a copy  of  the  petition  for  any  measure  tc . 
be  referred  to  the  people  of  the  State,  or  of  any  county  or  district 
composed  of  one  or  more  counties,  either  by  the  initiative  or  the  refer- 
endum, shall  be  filed  with  the  Secretary  of  State,  as  provided  in 
Section  3472,  Lord’s  Oregon  Laws  as  amended  by  Chapter  359, 
General  Laws  of  Oregon  of  1913,  or  when  the  submission  to  the  peo- 
ple of  any  proposed  constitutional  amendment  or  measure  shall  be 
ordered  by  the  Legislative  Assembly,  the  Secretary  of  State  shall 
forthwith  transmit  two  copies  thereof  to  the  Attorney  General  of  the 
State.  Within  ten  days  after  receiving  said  copies  the  Attorney 
General  shall  provide  a ballot  title  therefor  and  return  it  to  the 
Secretary  of  State,  together  with  the  ballot  title  (for  said  measure) 
so  prepared  by  him.  A copy  of  the  ballot  title  as  prepared  by  the 
Attorney  General  shall  be  furnished  by  the  Secretary  of  State  with 
his  approved  form  of  any  initiative  or  referendum  petition,  as  pro- 
vided in  said  Section  3472,  Lord’s  Oregon  Laws,  as  amended,  to 
the  person  or  persons  or  organization  or  organizations  under  whose 
authority  the  measure  is  initiated  or  referred.  Said  ballot  title  shall 
be  used  and  printed  on  the  covers  of  the  petition  when  in  circu- 
lation, the  short  title  shall  be  printed  in  type  not  less  than  twenty 
points  on  the  covers  of  all  such  petitions  circulated  for  signatures. 
The  ballot  title  shall  contain:  (1)  The  name  or  names  of  the  person 
or  persons,  organization  or  organizations  under  whose  authority  the 
measure  is  to  be  initiated  or  referred.  (2)  A distinctive  short  title 
in  not  exceeding  ten  words  by  which  the  measure  is  commonly  re- 
ferred to  or  spoken  of  and  which  shall  be  printed  in  the  foot  mar- 
gin of  each  signature  sheet  of  the  petition.  (3)  A general  title 
which  may  be  distinct  from  the  legislative  title  of  the  measure,  ex- 
pressing in  not  more  than  one  hundred  words  the  purpose  of  the 
measure.  The  ballot  title  shall  be  printed  with  the  numbers  of  the 
measure  on  the  official  ballot.  In  making  such  ballot  title  the  At> 
torney  General  shall  to  the  best  of  his  ability  give  a true  and  impartial 
statement  of  the  purpose  of  the  measure  and  in  such  language  that 
the  ballot  title  shall  not  be  intentionally  an  argument  or  likely  to 
create  prejudice  either  for  or  against  the  measure.  Any  person  who 
is  dissatisfied  with  the  ballot  title  or  the  short  title  provided  by  the 
Attorney  General  for  any  measure,  may  appeal  from  his  decision  to 
the  circuit  court  as  provided  by  Section  3474  by  petition,  praying 
for  a different  title  and  setting  forth  the  reason  why  the  title  pre- 
prepared by  the  Attorney  General  is  insufficient  or  unfair.  No  appeal 


131 


shall  he  allowed  from  the  decision  of  the  Attorney  General  on  a 
ballot  title  unless  the  same  is  taken  within  twenty  days  after  said 
ballot  title  is  filed  in  the  office  of  the  Secretary  of  State.  A copy 
of  every  such  ballot  title  shall  be  served  by  the  Secretary  of  State 
or  clerk  of  the  court,  upon  the  person  offering  or  filing  such  in- 
itiative or  referendum  petition,  or  appeal.  The  service  of  such  de- 
cision may  be  by  mail  or  telegraph,  and  shall  be  made  forthwith 
when  it  is  received  from  the  Attorney  General  by  the  Secretary  of 
State.  Said  circuit  court  shall  thereupon  examine,  said  measure,  hear 
arguments,  and  in  its  decision  thereon  certify  to  the  Secretary  of 
State  a ballot  title  and  a short  title  for  the  measure  in  accord  with 
the  intent  of  this  section.  The  decision  of  the  circuit  court  shall 
be  final.  The  Secretary  of  State  shall  print  on  the  official  ballot  the 
titles  thus  certified  to  him.  (As  amended  by  Laws,  1917,  Ch.  176, 
Sec.  2). 

Sec.  3476.  Designation  and  Numbering  of  Measures.  The 
Secretary  of  State,  at  the  time  he  furnishes  to  the  county  clerks  of 
the  several  counties  certified  copies  of  the  names  of  the  candidates  for 
state  and  district  offices,  shall  furnish  to  each  of  said  county  clerks 
his  certified  copy  of  the  ballot  titles  and  numbers  of  the  several  meas- 
ures to  be  voted  upon  at  the  ensuing  general  election,  and  he  shall 
use  for  each  measure  the  ballot  title  designated  in  the  manner  herein 
provided.  Such  ballot  title  shall  not  resemble,  so  far  as  to  probably 
create  confusion,  any  such  title  previously  filed  for  any  measure  to 
be  submitted  at  that  election ; he  shall  number  such  measures  and  such 
ballot  titles  shall  be  printed  on  the  official  ballot  in  the  order  in  which 
acts  referred  by  the  legislative  assembly  and  petitions  by  the  people 
shall  be  filed  in  his  office.  The  affirmative  of  the  first  measure  shall 
be  numbered  300  and  the  negative  301  in  numerals,  and  the  suc- 
ceeding measures  shall  be  numbered  consecutively  302,  303,  304,  305, 
and  so  on,  at  each  election.  It  shall  be  the  duty  of  the  several  county 
clerks  fo  print  said  ballot  titles  and  numbers  upon  the  official  ballot 
in  the  order  presented  to  them  by  the  Secretary  of  State  and  the 
relative  position  required  by  law.  Measures  referred  by  the  legislative 
assembly  shall  be  designated  by  the  heading  “Referred  to  the  People 
by  the  Legislative  Assembly measures  referred  bv  petition  shall  be 
designated  “Referendum  Ordered  by  Petition  of  the  People measures 
proposed  by  initiative  petition  shall  be  designated  and  distinguished 
on  the  ballot  by  the  heading  “Proposed  by  Initiative  Petition.” 

The  appropriate  officer  of  each  incorporated  city  or  town  of  the 
state  having  more  than  2,000  inhabitants  at  the  last  preceding  United 
States  census,  at  the  time  he  furnishes  to  the  county  clerk  of  the  county 
in  which  such  incorporated  city  or  town  is  situated'  certified  copies  of 
names  of  the  candidates  for  city  and  town  offices,  shall  furnish  to 
said  county  clerk  his  certified  copy  of  the  ballot  titles  and  numbers 
of  the  several  measures  to  be  voted  upon  at  the  ensuing  general  elec- 
tion, and  he  shall  use  for  each  measure  the  ballot  title  designated  in 
the  manner  herein  provided.  Such  ballot  title  shall  not  resemble, 
so  far  as  to  probably  create  confusion,  any  such  title  previously  filed 
for  any  measure  to  be  submitted  at  that  election ; he  shall  number 


132 


such  measures  and  such  ballot  titles  shall  be  printed  on  the  official 
ballot.  The  affirmative  of  the  first  measure  shall  be  numbered  500 
and  the  negative  501  in  numerals,  and  the  succeeding  measures  shall 
be  numbered  consecutively  502,  503,  504,  505,  and  so  on,  at  each 
election.  It  shall  be  the  duty  of  the  county  clerk  to  print  said  ballot 
titles  and  numbers  upon  the  official  ballot  in  the  order  presented  to 
them  by  the  said  city  or  town  officer  and  the  relative  position  required 
by  law.  (As  amended  by  Laws,  1919,  Ch.  283,  Sec.  32.) 

Sec.  3477.  The  manner  of  voting  upon  measures  submitted  to 
the  people  shall  be  the  same  as  is  now  or  may  be  required  and  provided 
by  law ; no  measure  shall  be  adopted  unless  it  shall  receive  an  affirma- 
tive majority  of  the  total  number  of  respective  votes  cast  on  such 
measures  and  entitled  to  be  counted  under  the  provisions  of  this  act; 
that  is  to  say,  supposing  seventy  thousand  ballots  to  be  properly 
marked  on  any  measure,  it  shall  not  be  adopted  unless  it  shall  receive 
more  than  thirty-five  thousand  affirmative  votes.  If  two  or  more 
conflicting  laws  shall  be  approved  by  the  people  at  the  same  election, 
the  law  receiving  the  greatest  number  of  affirmative  votes  shall  be 
paramount  in  all  particulars  as  to  which  there  is  a conflict,  even  though 
such  law  may  not  have  received  the  greatest  majority  of  affirmative 
votes.  If  two  or  more  conflicting  amendments  to  the  constitution 
shall  be  approved  by  the  people  at  the  same  election,  the  amendment 
which  receives  the  greatest  number  of  affirmative  votes  shall  be 
paramount  in  all  particulars  as  to  which  there  is  a conflict,  even  though 
such  amendment  may  not  have  received  the  greatest  majority  of 
affirmative  votes  (1907). 

Sec.  3478.  Not  later  than  the  90th  day  before  any  regular  gen- 
eral election,  nor  later  than  30  days  before  any  special  election,  at 
which  any  proposed  law,  part  of  an  act  or  amendment  to  the  con- 
stitution is  to  be  submitted  to  the  people,  the  secretary  of  state  shall 
cause  to  be  printed  in  pamphlet  form  a true  copy  of  the  title  and 
text  of  each  measure  to  be  submitted,  with  the  number  and  form 
in  which  the  ballot  title  thereof  will  be  printed  on  the  official  ballot. 
The  person,  committee  or  duly  organized  officers  .of  any  organiza- 
tion filing  any  petition  for  the  initiative,  but  no  other  person  or 
organization,  shall  have  the  right  to  file  with  the  secretary  of  state 
for  printing  and  distribution  any  argument  advocating  such  measure , 
said  argument  shall  be  filed  not  later  than  the  115th  day  before  the 
regular  election  at  which  the  measure  is  to  be  voted  upon.  Any 
person,  committee  or  organization  may  file  with  the  secretary  of 
state,  for  printing  and  distribution,  any  arguments  they  may  desire, 
opposing  any  measure,  not  later  than  the  105th  day  immediately  pre- 
ceding such  election.  Arguments  advocating  or  opposing  any  mea- 
sure referred  to  the  people  by  the  legislative  assembly,  or  by  refer- 
endum petition,  at  a regular  general  election,  shall  be  governed  by 
the  same  rules  as  to  time,  but  may  be  filed  with  the  secretary  of 
state  by  any  person,  committee  or  organization ; in  the  case  of  mea- 
sures submitted  at  a special  election,  all  arguments  in  support  of 
such  measure  at  least  60  days  before  such  election.  But  in  every 
case  the  person  or  persons  offering  such  arguments  for  printing  and 


133 


distribution  shall  pay  to  the  secretary  of  state  sufficient  money  to  pay 
all  the  expenses  for  paper  and  printing  to  supply  one  copy  with  every 
copy  of  the  measure  to  be  printed  by  the  State ; and  he  shall  forth- 
with notify  the  persons  offering  the  same  of  the  amount  of  money 
necessary.  The  secretary  of  state  shall  cause  one  copy  of  each  of 
said  arguments  to  be  bound  in  the  pamphlet  copy  of  the  measures 
to  be  submitted  as  herein  provided,  and  all  such  measures  and  argu- 
ments to  be  submitted  at  one  election  shall  be  bound  together  in  a 
single  pamphlet.  All  the  printing  shall  be  done  by  the  state,  and 
the  pages  of  said  pamphlet  shall  be  numbered  consecutively  from  one 
to  the  end.  The  pages  of  said  pamphlet  shall  be  six  by  nine  inches 
in  size  and  the  printed  matter  therein  shall  be  set  in  six-point  Roman- 
faced solid  type  on  not  to  exceed  seven-point  body,  in  two  columns 
of  13  ems  in  width  each  to  the  page  with  six-point  dividing  rule 
and  with  appropriate  heads  and  printed  on  a good  quality  of  book 
paper  25  by  38  inches  weighing  not  more  than  50  pounds  to  the 
ream.  The  title  page  of  every  measure  bound  in  said  pamphlet  shall 
show1  its  ballot  title  and  ballot  number.  The  title  page  of  each 
argument  shall  show  the  measure  or  measures  it  favors  or  opposes 
and  by  what  persons  or  organization  it  is  issued.  When  such  argu- 
ments are  printed  he  shall  pay  the  state  printer  therefor  from  the 
money  deposited  with  him  and  refund  the  surplus,  if  any,  to  the 
parties  who  paid  it  to  him.  The  cost  of  printing,  binding  and  dis- 
tributing the  measures  proposed  and  of  binding  and  distributing  the 
arguments,  shall  be  paid  by  the  state  as  a part  of  the  state  printing, 
it  being  intended  that  only  the  cost  of  paper  and  printing  the  argu- 
ments shall  be  paid  by  the  parties  presenting  the  same,  and  they  shall 
not  be  charged  any  higher  rate  for  such  work  than  is  paid  by  the 
state  for  similar  work  and  paper.  Not  later  than  the  55th  day  before 
the  regular  general  election  at  which  such  measures  are  to  be  voted 
upon  the  secretary  of  state  shall  transmit  by  mail,  with*  postage 
fully  prepaid,  to  every  voter  in  the  state  whose  address  he  may  have, 
one  copy  of  such  pamphlet ; provided,  that  if  the  secretary  shall,  at 
or  about  the  same  time  be  mailing  any  other  pamphlet  to  every  voter, 
he  may,  if  practicable,  bind  the  matter  herein  provided  for  in  the 
first  part  of  said  pamphlet,  numbering  the  pages  of  the  entire  pamph- 
let consecutively  from  one  to  the  end,  or  he  may  enclose  the  pamph- 
lets under  one  cover.  In  the  case  of  a special  election  he  shall  mail 
said  pamphlet  to  every  voter  not  less  than  20  days  before  said  special 
election.  (As  amended  by  Laws,  1913;  ch.  359,  Sec.  4). 

Sec.  3483.  Every  person  who  is  a qualified  elector  of  the  state 
of  Oregon  may  sign  a petition  for  the  referendum  or  for  the  initiative 
for  any  measure  which  he  is  legally  entitled  to  vote  upon.  Any 
person  signing  any  name  other  than  his  own  to  any  petition,  or  know- 
ingly signing  his  name  more  than  once  for  the  same  measure  at  one 
election,  or  who  is  not  at  the  time  of  signing  the  same  a legal  voter 
of  this  state,  or  any  officer  or  person  willfully  violating  any  pro- 
vision of  this  statute,  shall,  upon  conviction  thereof,  be  punished 
by  a fine  not  exceeding  $500,  or  by  imprisonment  in  the  penitentiary 
not  exceeding  two  years,  or  by  both  such  fine  and  imprisonment,  in 


134 


the  discretion  of  the  court  before  which  such  conviction  shall  be 
had  (1907). 

Sec.  3497.  Any  person  not  a candidate  for  any  office  or  nomina- 
tion who  expends  money  or  value  to  an  amount  greater  than  $50 
in  any  campaign  for  nomination  or  election,  to  aid  in  the  election 
or  defeat  of  any  candidate  or  candidates,  or  party  ticket,  or  measure 
before  the  people,  shall  within  ten  days  after  the  election  in  which 
said  money  or  value  was  expended,  file  with  the  secretary  of  state  in 
the  case  of  a measure  voted  upon  by  the  people  ....  an  itemized 
statement  of  such  receipts  and  expenditures  and  vouchers  for  every 
sum  paid  in  excess  of  $5.  . . . (1908). 

Sec.  3515.  Any  person  shall  be  guilty  of  a corrupt  practice 
within  the  meaning  of  this  act  if  he  expends  any  money  for  elec- 
tion purposes  contrary  to  the  provisions  of  any  statute  of  this  state, 
or  if  he  is  guilty  of  treating,  undue  influence,  personation,  the  giving 
or  promising  to  give,  or  offer  of  any  money  or  valuable  thing  to  any 
elector  with  intent  to  induce  such  elector  to  vote  or  to  refrain  from 
voting  for  any  candidate  for  public  office,  or  the  ticket  of  any  political 
party  or  organization,  or  any  measure  submitted  to  the  people,  at  any 
election,  or  to  register  or  refrain  from  registering  as  a voter  at  any 
state,  district,  county,  city,  town,  village,  or  school  district  election 
for  public  offices  or  on  public  measures.  Such  corrupt  practice 
shall  be  deemed  to  be  prevalent  when  instances  thereof  occur  in  differ- 
ent election  districts  similar  in  character  and  sufficient  in  number  to 
convince  the  court  before  which  any  case  involving  the  same  may 
be  tried  that  they  were  general  and  common  or  were  pursuant  to  a 
general  scheme  or  plan  (1908). 

Sec.  3517.  No  publisher  of  a newspaper  or  other  periodical 
shall  insert,  either  in  its  advertising  or  reading  columns,  any  paid 
matter  which  is  designed  or  tends  to  aid,  injure,  or  defeat  any  candi- 
date or  political  party  or  organization,  or  measure  before  the  people, 
unless  it  is  stated  therein  that  it  is  a paid  advertisement,  the  name 
of  the  chairman  or  secretary,  or  the  names  of  the  other  officers  of  the 
political  or  other  organization  inserting  the  same,  or  the  name  of 
some  voter  who  is  responsible  therefor,  with  his  residence  and  the 
street  and  number  thereof,  if  any,  appear  in  such  advertisement  in 

the  nature  of  a signature Any  person  who  shall  violate  any 

of  the  provisions  of  this  section  shall  be  punished  as  for  a corrupt 
practice  (1908). 

Sec.  3518.  It  shall  be  unlawful  for  any  person  at  any  place  on 
the  day  of  any  election  to  ask,  solicit,  or  in  any  manner  try  to  induce 
or  persuade  any  voter  on  such  election  day  to  vote  for  or  refrain 
from  voting  for  any  candidate,  or  the  candidates  or  ticket  of  any 
political  party  or  organization,  or  any  measure  submitted  to  the 
people,  and  upon  conviction  thereof  he  shall  be  punished  by  a fine 
of  not  less  than  $5  nor  more  than  $100  for  the  first  ofifense,  and  for 
the  second  and  each  subsequent  ofifense  occuring  on  the  same  or 
dififerent  election  days,  he  shall  be  punished  by  fine  as  aforesaid, 
or  by  imprisonment  in  the  county  jail  for  not  less  than  five  nor  more 
than  thirty  days,  or  by  both  such  fine  and  imprisonment  (1908). 


135 


Sec.  3519.  It  shall  be  unlawful  to  write,  print,  or  circulate 
through  the  mails  or  otherwise  any  letter,  circular,  bill,  placard,  or 
poster  relating  to  any  election  or  to  any  candidate  at  any  election, 
unless  the  same  shall  bear  on  its  face  the  name  and  address  of  the 
author,  and  of  the  printer  and  publisher  thereof ; and  any  person 
writing,  printing,  publishing,  circulating,  posting,  or  causing  to  be 
written,  printed,  circulated,  posted,  or  published  any  such  letter, 
bill,  placard,  circular  or  poster  as  aforesaid,  which  fails  to  bear  on 
its  face  the  name  and  address  of  the  author  and  of  the  printer  or 
publisher  shall  be  guilty  of  an  illegal  practice,  and  shall,  on  conviction 
thereof,  be  punished  by  fine  of  not  less  than  $10  nor  more  than 
$1,000  (1908). 


3.  Ohio  Constitutional  Amendment  (1912). 

Article  II,  Section  1.  The  legislative  power  of  the  state  shall 
be  vested  in  a general  assembly  consisting  of  a senate  and  house  of 
representatives  but  the  people  reserve  to  themselves  the  power  to 
propose  to  the  general  assembly  laws  and  amendments  to  the  con- 
stitution, and  to  adopt  or  reject  the  same  at  the  polls  on  a referendum 
vote  as  hereinafter  provided.  They  also  reserve  the  power  to  adopt 
or  reject  any  law,  section  of  any  law  or  any  item  in  any  law  appro- 
priating money  passed  by  the  general  assembly,  except  as  hereinafter 
provided ; and  independent  of  the  general  assembly  to  propose  amend- 
ments to  the  constitution  and  to  adopt  or  reject  the  same  at  the 
polls.  The  limitations  expressed  in  the  constitution,  on  the  power 
of  the  general  assembly  to  enact  laws,  shall  be  deemed  limitations  on 
the  power  of  the  people  to  enact  laws.  (Adopted  Sept.  3,  1912). 

Sec.  la.  The  first  aforestated  power  reserved  by  the  people  is 
designated  the  initiative,  and  the  signatures  of  ten  per  centum  of  the 
electors  shall  be  required  upon  a petition  to  propose  an  amendment 
to  the  constitution.  When  a petition  signed  by  the  aforesaid  required 
number  of  electors,  shall  have  been  filed  with  the  secretary  of  state, 
and  verified  as  herein  provided,  proposing  an  amendment  to  the 
constitution  the  full  text  of  which  shall  have  been  set  forth  in  such 
petition,  the  secretary  of  state  shall  submit  for  the  approval  or 
rejection  of  the  electors,  the  proposed  amendment,  in  the  manner  here- 
inafter provided,  at  the  next  succeeding  regular  or  general  election 
in  any  year  occurring  subsequent  to  ninety  days  after  the  filing  of  such 
petition.  The  initiative  petitions,  above  described,  shall  have  printed 
across  the  top  thereof ; “Amendment  to  the  Constitution  Proposed 
by  Initiative  Petition  to  be  Submitted  Directly  to  the  Electors”. 
(Adopted  Sept.  3,  1912). 

Sec.  lb.  When  at  any  time,  not  less  than  ten  days  prior  to  the 
commencement  of  any  session  of  the  general  assembly,  there  shall 
have  been  filed  with  the  secretary  of  state  a petition  signed  by  three 
per  centum  of  the  electors  and  verified  as  herein  provided,  proposing 
a law,  the  full  text  of  which  shall  have  been  set  forth  in  such  peti- 
tion, the  secretary  of  state  shall  transmit  the  same  to  the  general 


136 


assembly  as  soon  as  it  convenes.  If  said  proposed  law  shall  be  passed 
by  the  general  assembly,  either  as  petitioned  for  or  in  an  amended 
form,  it  shall  be  subject  to  the  referendum.  If  it  shall  not  be  passed, 
or  if  it  shall  be  passed  in  an  amended  form,  or  if  no  action  shall 
be  taken  thereon  within  four  months  from  the  time  it  is  received  by 
the  general  assembly,  it  shall  be  submitted  by  the  secretary  of  state 
to  the  electors  for  their  approval  or  rejection  at  the  next  regular 
or  general  election,  if  such  submission  shall  be  demanded  by  supple- 
mentary petition  verified  as  herein  provided  and  signed  by  not  less 
than  three  per  centum  of  the  electors  in  addition  to  those  signing  the 
original  petition,  which  supplementary  petition  must  be  signed  and 
filed  with  the  secretary  of  state  within  ninety  days  after  the  proposed 
law  shall  have  been  rejected  by  the  general  assembly  or  after  the 
expiration  of  such  term  of  four  months,  if  no  action  has  been  taken 
thereon,  or  after  the  law  as  passed  by  the  general  assembly  shall 
have  been  filed  by  the  governor  in  the  office  of  the  secretary  of  state. 
The  proposed  law  shall  be  submitted  in  the  form  demanded  by  such 
supplementary  petition,  which  form  shall  be  either  as  first  petitioned 
for  or  with  any  amendment  or  amendments  which  may  have  been 
incorporated  therein  by  either  branch  or  by  both  branches  of  the 
general  assembly.  If  a proposed  law  so  submitted  is  approved  by  a 
majority  of  the  electors  voting  thereon,  it  shall  be  the  law  and 
shall  go  into  effect  as  herein  provided  in  lieu  of  any  amended  form 
of  said  law  which  may  have  been  passed  by  the  general  assembly, 
and  such  amended  law  passed  by  the  general  assembly  shall  not 
go  into  effect  until  and  unless  the  law  proposed  by  supplementary 
petition  shall  have  been  rejected  by  the  electors.  All  such  initiative 
petitions,  last  above  described,  shall  have  printed  across  the  top 
thereof,  in  case  of  proposed  laws : “Law  Proposed  by  Initiative  Pe- 
tition First  to  be  Submitted  to  the  General  Assembly”.  Ballots  shall 
be  so  printed  as  to  permit  an  affirmative  or  negative  vote  upon  each 
measure  submitted  to  the  electors.  Any  proposed  law  or  amendment 
to  the  constitution  submitted  to  the  electors  as  provided  in  section  la 
and  section  lb,  if  approved  by  a majority  of  the  electors  voting 
thereon,  shall  take  effect  thirty  days  after  the  election  at  which  it 
was  approved  and  shall  be  published  by  the  secretary  of  state.  If 
conflicting  proposed  laws  or  conflicting  proposed  amendments  to  the 
constitution  shall  be  approved  at  the  same  election  by  a.  majority 
of  the  total  number  of  votes  cast  for  and  against  the  same,  the 
one  receiving  the  highest  number  of  affirmative  votes  shall  be  the 
law,  or  in  the  case  of  amendments  to  the  constitution  shall  be  the 
amendment  to  the  constitution.  No  law  proposed  by  initiative  peti- 
tion and  approved  by  the  electors  shall  be  subject  to  the  veto  of 
the  governor.  (Adopted  Sept.  3,  1912). 

Sec.  lc.  The  second  aforestated  power  reserved  by  the  people 
is  designated  the  referendum,  and  the  signatures  of  six  per  centum 
of  the  electors  shall  be  required  upon  a petition  to  order  the  submission 
to  the  electors  of  the  state  for  their  approval  or  rejection,  of  any 
law,  section  of  any  law  or  any  item  in  any  law  appropriating  money 
passed  by  the  general  assembly.  No  law  passed  by  the  general 


137 


assembly  shall  go  into  effect  until  ninety  days  after  it  shall  have  been 
filed  by  the  governor  in  the  office  of  the  secretary  of  state,  except  as 
herein  provided.  When  a petition,  signed  by  six  per*centum  of  the 
electors  of  the  state  and  verified  as  herein  provided,  shall  have  been 
filed  with  the  secretary  of.  state  within  ninety  days  after  any  law 
shall  have  been  filed  by  the  governor  in  the  office  of  the  secretary 
of  state,  ordering  that  such  law,  section  of  such  law  or  any  item  in 
such  law  appropriating  money  be  submitted  to  the  electors  of  the 
state  for  their  approval  or  rejection,  the  secretary  of  state  shall  sub- 
mit to  the  electors  of  the  state  for  their  approval  or  rejection  such 
law,  section  or  item,  in  the  manner  herein  provided,  at  the  next  suc- 
ceeding regular  or  general  election  in  any  year  occurring  subsequent 
to  sixty  days  after  the  filing  of  such  petition,  and  no  such  law, 
section  or  item  shall  go  into  effect  until  and  unless  approved  by  ‘a 
majority  of  those  voting  upon  the  same.  If,  however,  a referendum 
petition  is  filed  against  any  such  section  or  item,  the  remainder  of 
the  law  shall  not  thereby  be  prevented  or  delayed  from  going  into 
effect.  (Adopted  Sept.  3,  1912). 

Sec.  Id.  Laws  providing  for  tax  levies,  appropriations  for  the 
current  expenses  of  the  state  government  and  state  institutions,  and 
emergency  laws  necessary  for  the  immediate  preservation  of  the  public 
peace,  health  or  safety,  shall  go  into  immediate  effect.  Such  emerg- 
ency laws  upon  a yea  and  nay  vote  must  receive  the  vote  of  two-thirds 
of  all  the  members  elected  to  each  branch  of  the  general  assembly, 
and  the  reasons  for  such  necessity  shall  be  set  forth  in  one  section  of 
the  law,  which  section  shall  be  passed  only  upon  a yea  and  nay  vote, 
upon  a separate  roll  call  thereon.  The  laws  mentioned  in  this  section 
shall  not  be  subject  to  the  referendum.  (Adopted  Sept.  3,  1912). 

Sec.  le.  The  powers  defined  herein  as  the  “initiative”  and  “refer- 
endum” shall  not  be  used  to  pass  a law  authorizing  any  classification 
of  property  for  the  purpose  of  levying  different  rates  of  taxation 
thereon  or  of  authorizing  the  levy  of  any  single  tax  on  land  or  land 
values  or  land  sites  at  a higher  rate  or  by  a different  rule  than  is  or 
may  be  applied  to  improvements  therein  or  to  personal  property. 
(Adopted  Sept.  3,  1912.) 

Sec.  If.  The  initiative  and  referendum  powers  are  hereby  re- 
served to  the  people  of  each  municipality  on  all  questions  which  such 
municipalities  may  now  or  hereafter  be  authorized  by  law  to  control 
by  legislative  action;  such  powers  shall  be  exercised  in  the  manner 
now  or  hereafter  provided  by  law.  (Adopted  Sept.  3,  1912). 

Sec.  lg.  Any  initiative,  supplementary  or  referendum  petition 
may  be  presented  in  separate  parts  but  each  part  shall  contain  a full 
and  correct  copy  of  the  title,  and  text  of  the  law,  section  or  item 
thereof  sought  to  be  referred,  or  the  proposed  law  or  proposed  amend- 
ment to  the  constitution.  Each  signer  of  any  initiative,  supplementary 
or  referendum  petition  must  be  an  elector  of  the  state  and  shall  place 
on  such  petition  after  his  name  the  date  of  signing  and  his  place  of 
residence.  A signer  residing  outside  of  a municipality  shall  state 
the  township  and  county  in  which  he  resides.  A resident  of  a munici- 
pality shall  state  in  addition  to  the  name  of  such  municipality,  the  street 


138 


and  number,  if  any,  of  his  residence  and  the  ward  and  precinct  in 
which  the  same  is  located.  The  names  of  all  signers  to  such  petitions 
shall  be  written  in  ink,  each  signer  for  himself.  To  each  part  of  such 
petition  shall  be  attached  the  affidavit  of  the  person  soliciting  the  sig- 
natures to  the  same,  which  affidavit  shall  contain  a statement  of  the 
number  of  the  signers  of  such  part  of  such  petition  and  shall  state 
that  each  of  the  signatures  attached  to  such  part  was  made  in  the 
presence  of  the  affiant,  that  to  the  best  of  his  knowledge  and  belief 
each  signature  on  such  part  is  the  genuine  signature  of  the  person 
whose  name  it  purports  to  be,  that  he  believes  the  persons  who  have 
signed  it  to  be  electors,  that  they  so  signed  said  petition  with  knowledge 
of  the  contents  thereof,  that  each  signer  signed  the  same  on  the  date 
stated  opposite  his  name ; and  no  other  affidavit  thereto  shall  be 
required.  The  petition  and  signatures  upon  such  petitions,  so  verified, 
shall  be  presumed  to  be  in  all  respects  sufficient,  unless  not  later  than 
forty  days  before  the  election,  it  shall  be  otherwise  proved  and  in  such 
event  ten  additional  days  shall  be  allowed  for  the  filing  of  additional 
signatures  to  such  petition.  No  law  or  amendment  to  the  constitution 
submitted  to  the  electors  by  initiative  and  supplementary  petition  and 
receiving  an  affirmative  majority  of  the  votes  cast  thereon,  shall  be 
held  unconstitutional  or  void  on  account  of  the  insufficiency  of  the 
petitions  by  which  such  submission  of  the  same  was  procured ; nor 
shall  the  rejection  of  any  law  submitted  by  referendum  petition  be 
held  invalid  for  such  insufficiency.  Upon  all  initiative,  supplementary 
and  referendum  petitions  provided  for  in  any  of  the  sections  of  this 
article,  it  shall  be  necessary  to  file  from  each  of  one-half  of  the 
counties  of  the  state,  petitions  bearing  the  signatures  of  not  less 
than  one-half  of  the  designated  percentage  of  the  electors  of  such 
county.  A true  copy  of  all  laws  or  proposed  laws  or  proposed  amend- 
ments to  the  constitution,  together  with  an  argument  or  explanation, 
or  both,  for,  and  also  an  argument  or  explanation,  or  both,  against 
the  same,  shall  be  prepared.  The  person  or  persons  who  prepare 
the  argument  or  explanation,  or  both,  against  any  law,  section  or 
item,  submitted  to  the  electors  by  referendum  petition,  may  be  named 
in  such  petition  and  the  persons  who  prepare  the  argument  or  explana- 
tion, or  both,  for  any  proposed  law  or  proposed  amendment  to  the 
constitution  may  be  named  in  the  petition  proposing  the  same.  The 
person  or  persons  who  prepare  the  argument  or  explanation,  or  both, 
for  the  law,  section  or  item,  submitted  to  the  electors  by  referendum 
petition,  or  against  any  proposed  law  submitted  by  supplementary 
petition,  shall  be  named  by  the  general  assembly,  if  in  session,  and  if 
not  in  session  then  by  the  governor.  The  secretary  of  state  shall 
cause  to  be  printed  the  law,  or  proposed  law,  or  proposed  amendment 
to  the  constitution,  together  with  the  arguments  and  explanations, 
not  exceeding  a total  of  three  hundred  words  for  each,  and  also  the 
arguments  and  explanations,  not  exceeding  a total  of  three  hundred 
words  against  each,  and  shall  mail,  or  otherwise  distribute,  a copy  of 
such  law,  or  proposed  law,  or  proposed  amendment  to  the  constitution, 
together  with  such  arguments  and  explanations  for  and  against  the 
same  to  each  of  the  electors  of  the  state,  a*s  far  as  may  be  reasonably 


139 


possible.  Unless  otherwise  provided  by  law,  the  secretary  of  state 
shall  cause  to  be  placed  upon  the  ballots,  the  title  of  any  such  law,  or 
proposed  law,  or  proposed  amendment  to  the  constitution,  to  be  sub- 
mitted. He  also  shall  cause  the  ballots  so  to  be  printed  as  to  permit 
an  affirmative  or  negative  vote  upon  each  law,  section  of  law,  or  item 
in  a law  appropriating  money,  or  proposed  law  or  proposed  amend- 
ment to  the  constitution.  The  style  of  all  laws  submitted  by  initiative 
and  supplementary  petition  shall  be:  “Be  it  Enacted  by  the  People 

of  the  State  of  Ohio,”  and  of  all  constitutional  amendments:  “Be  it 

Resolved  by  the  People  of  the  State  of  Ohio.”  The  basis  upon  which 
the  required  number  of  petitioners  in  any  case  shall  be  determined 
shall  be  the  total  number  of  votes  cast  for  the  office  of  goveror  at  the 
last  preceding  election  therefor.  The  foregoing  provisions  of  this 
section  shall  be  self-executing,  except  as  herein  otherwise  provided. 
Laws  may  be  passed  to  facilitate  their  operation,  but  in  no  way 
limiting  or  restricting  either  such  provision  or  the  powers  herein 
reserved.  (Adopted  Sept.  3,  1912.) 


4.  Michigan  Constitutional  Amendment  (1913). 

Article  V,  Section  1.  The  legislative  power  of  the  state  of  Michi- 
gan is  vested  in  a senate  and  house  of  representatives ; but  the  people 
reserve  to  themselves  the  power  to  propose  legislative  measures,  reso- 
lutions and  laws;  to  enact  or  reject  the  same  at  the  polls  independently 
of  the  legislature;  and  to  approve  or  reject  at  the  polls  any  act  passed 
by  the  legislature,  except  acts  making  appropriations  for  state  insti- 
tutions and  to  meet  deficiencies  in  state  funds.  The  first  power  re- 
served by  the  people  is  the  initiative.  At  least  eight  per  cent  of  the 
legal  voters  of  the  state  shall  be  required  to  propose  any  measure  by 
petition : Provided,  that  no  law  shall  be  enacted  by  the  initiative  that 

could  not  under  this  constitution  be  enacted  by  the  legislature.  Initia- 
tive petitions  shall  set  forth  in  full  the  proposed  measure,  and  shall 
be  filed  with  the  secretary  of  state  not  less  than  ten  days  before  the 
commencement  of  any  session  of  the  legislature.  Every  petition  shall 
be  certified  to  as  herein  provided,  as  having  been  signed  by  qualified 
electors  of  the  state  equal  in  number  to  eight  per  cent  of  the  total 
vote  cast  for  all  candidates  for  governor  at  the  last  preceding  general 
election,  at  which  a governor  was  elected.  Upon  receipt  of  any  ini- 
tiative petition,  the  secretary  of  state  shall  canvass  the  same  to  ascer- 
tain if  such  petition  has  been  signed  by  the  requisite  number  of 
qualified  electors,  and  if  the  same  has  been  so  signed,  the  secretary  of 
state  shall  transmit  such  petition  to  the  legislature  as  soon  as  it  con- 
venes and  organizes.  The  law  proposed  by  such  petition  shall  be 
either  enacted  or  rejected  by  the  legislature  without  change  or  amend- 
ment within  forty  days  from  the  time  such  petition  is  received  by 
the  legislature. 

If  any  law  proposed  by  such  petition  shall  be  enacted  by  the 
legislature  it  shall  be  subject  to  referendum,  as  hereinafter  provided. 
If  any  law  so  petitioned  for  be  rejected,  or  if  no  action  is  taken  upon 


140 


it  by  the  legislature  within  said  forty  days,  the  secretary  of  state  shall 
submit  such  proposed  law  to  the  people  for  approval  or  rejection  at 
the  next  ensuing  general  election.  The  legislature  may  reject  any 
measure  so  proposed  by  initiative  petition  and  propose  a different 
measure  upon  the  same  subject  by  a yea  and  nay  vote  upon  separate 
roll  calls,  and  in  such  event  both  measures  shall  be  submitted  by  the 
secretary  of  state  to  the  electors  for  approval  or  rejection  at  the  next 
ensuing  general  election.  All  said  initiative  petitions  last  above 
described  shall  have  printed  thereon  in  twelve  point  black  face  type 
the  following:  “Initiative  measure  to  be  presented  to  the  legislature.” 

The  second  power  reserved  to  the  people  is  the  referendum.  No 
act  passed  by  the  legislature  shall  go  into  effect  until  ninety  days  after 
the  final  adjournment  of  the  session  of  the  legislature  which  passed 
such  act,  except  such  acts  making  appropriations  and  such  acts  im- 
mediately necessary  for  the  preservation  of  public  peace,  health  or 
safety,  as  have  been  given  immediate  effect  by  action  of  the  legislature. 

Upon  presentation  to  the  secretary  of  state  within  ninety  days 
after  the  final  adjournment  of  the  legislature,  of  a petition  certified 
to  as  herein  provided,  as  having  been  signed  by  qualified  electors 
equal  in  number  to  five  per  cent  of  the  total  vote  cast  for  all  candidates 
for  governor  at  the  last  election  at  which  a governor  was  elected, 
asking  that  any  act,  section  or  part  of  any  act  of  the  legislature,  be 
submitted  to  the  electors  for  approval  or  rejection,  the  secretary  of 
state,  after  canvassing  such  petition  as  above  required,  and  the  same 
is  found  to  be  signed  by  the  requisite  number  of  electors,  shall  submit 
to  the  electors  for  approval  or  rejection  such  act  or  section  or  part 
of  any  act  at  the  next  succeeding  general  election;  and  no  such  act 
shall  go  into  effect  until  and  unless  approved  by  a majority  of  the 
qualified  electors  voting  thereon. 

Any  act  submitted  to  the  people  by  either  initiative  or  referendum 
petition  and  approved  by  a majority  of  the  votes  cast  thereon  at  any 
election  shall  take  effect  ten  days  after  the  date  of  the  official  declara- 
tion of  the  vote  by  the  secretary  of  state.  No  act  initiated  or  adopted 
by  the  people,  shall  be  subject  to  the  veto  power  of  the  governor,  and 
no  act  adopted  by  the  people  at  the  polls  under  the  initiative  provisions 
of  this  section  shall  be  amended  or  repealed,  except  by  a vote  of  the 
electors  unless  otherwise  provided  in  said  initiative  measure,  but  the 
legislature  may  propose  such  amendments,  alterations  or  repeals  to 
the  people.  Acta  adopted  by  the  people  under  the  referendum  pro- 
vision of  this  section  may  be  amended  by  the  legislature  at  any  sub- 
sequent session  thereof : Provided,  however.  If  two  or  more  measures 
approved  by  the  electors  at  the  same  election  conflict,  the  measure 
receiving  the  highest  affirmative  vote  shall  prevail.  The  text  of  all 
measures  to  be  submitted  shall  be  published  as  constitutional  amend- 
ments are  required  by  law  to  be  published. 

Any  initiative  or  referendum  petition  may  be  presented  in  sec- 
tions, each  section  containing  a full  and  correct  copy  of  the  title  and 
text  of  the  proposed  measure.  Each  signer  thereto  shall  add  to  his 
signature,  his  place  of  residence,  street  and  number  in  cities  having 
street  numbers,  and  his  election  precinct.  Any  qualified  elector  oi 


141 


the  state  shall  be  competent  to  solicit  such  signatures  within  the  county 
in  which  he  is  an  elector.  Each  section  of  the  petition  shall  bear  the 
name  of  the  county  or  city  in  which  it  is  circulated,  and  only  qualified 
electors  of  such  county  or  city  shall  be  competent  to  sign  such  section. 
Each  section  shall  have  attached  thereto  the  affidavit  of  the  person 
soliciting  signatures  to  the  same,  stating  his  own  qualifications  and 
that  all  the  signatures  to  the  attached  section  were  made  in  his 
presence,  that  each  signature  to  the  section  is  the  genuine  signature  of 
the  person  signing  the  same,  and  no  other  affidavit  thereto  shall  be 
required.  Such  petitions  so  verified  shall  be  prima  facie  evidence  that 
the  signatures  thereon  are  genuine  and  that  the  persons  signing  the 
same  are  qualified  electors. 

Each  section  of  the  petition  shall  be  filed  with  the  clerk  of  the 
county  in  which  it  was  circulated,  but  all  said  sections  circulated  in 
any  county  shall  be  filed  at  the  same  time.  Within  twenty  days  after 
the  filing  of  such  petition  in  his  office,  the  said  clerk  shall  forward  said 
petition  to  the  secretary  of  state.  Within  forty  days  from  the  trans- 
mission of  the  said  petition  to  the  secretary  of  state,  a supplemental 
petition  identical  with  the  original  as  to  the  body  of  the  petition  but 
containing  supplemental  names,  may  be  filed  with  the  county  clerk, 
and  such  supplemental  petition  shall  be  forwarded  to  the  secretary 
of  state  by  said  clerk  within  ten  days  after  the  filing  of  the  same. 

Sec.  38.  Any  bill  passed  by  the  legislature  and  approved  by  the 
governor,  except  appropriation  bills,  may  be  referred  by  the  legisla- 
ture to  the  qualified  electors;  and  no  bill  so  referred  shall  become  a 
law  unless  approved  by  a majority  of  the  electors  voting  thereon. 

Article  XVII,  Section  2.  Amendment  may  also  be  proposed 
to  this  constitution  by  petition  of  the  qualified  voters  of  this  state. 
Every  such  petition  shall  include  the  full  text  of  the  amendment  so 
proposed  and  be  signed  by  not  less  than  ten  per  cent  of  the  legal  voters 
of  the  state.  Initiative  petitions  proposing  an  amendment  to  this 
constitution  shall  be  filed  with  the  secretary  of  state  at  least  four 
months  before  the  election  at  which  such  proposed  amendment  is  to 
be  voted  upon.  Upon  receipt  of  such  petition  by  the  secretary  of 
state,  he  shall  canvass  the  same  to  ascertain  if  such  petition  has 
been  signed  by  the  requisite  number  of  qualified  electors,  and  if  the 
same  has  been  so  signed,  the  proposed  amendment  shall  be  submitted 
to  the  electors  at  the  next  regular  election  at  which  any  state  officer 
is  to  be  elected.  Any  constitutional  amendment  initiated  by  the  peo- 
ple as  herein  provided,  shall  take  effect  and  become  a part  of  the 
constitution  if  the  same  shall  be  approved  by  a majority  of  the 
electors  voting  thereon  and  not  otherwise.  Every  amendment  shall 
take  effect  thirty  days  after  the  election  at  which  it  is  approved.  The 
total  number  of  votes  cast  for  governor  at  the  regular  election  last  pre- 
ceding the  filing  of  any  petition  proposing  an  amendment  to  the  con- 
stitution, shall  be  the  basis  upon  which  the  number  of  legal  voters 
necessary  to  sign  such  a petition  shall  be  computed.  The  secretary 
of  state  shall  submit  all  proposed  amendments  to  the  constitution 
initiated  by  the  people  for  adoption  or  rejection  in  compliance  here- 
with. Tho  petition  shall  consist  of  sheets  in  such  form  and  having 


142 


printed  or  written  at  the  top  thereof  such  heading  as  shall  be  desig- 
nated or  prescribed  by  the  secretary  of  state.  Such  petition  shall  be 
signed  by  qualified  voters  in  person  only,  with  the  residence  address 
of  such  persons  and  the  date  of  signing  the  same.  To  each  of  such 
petitions,  which  may  consist  of  one  or  more  sheets,  shall  be  at- 
tached the  affidavit  of  the  elector  circulating  the  same,  stating  that 
each  signature  thereto  is  the  genuine  signature  of  the  person  signing 
the  same,  and  that  to  the  best  knowledge  and  belief  of  the  affiant 
each  person  signing  the  petition  was  at  the  time  of  signing  a qualified 
elector.  Such  petition  so  verified  shall  be  prima  facie  evidence  that 
the  signatures  thereon  are  genuine,  and  that  the  persons  signing  the 
same  are  qualified  electors.  The  text  of  all  amendments  to  be  sub- 
mitted shall  be  published  as  constitutional  amendments  are  now 
required  to  be  published. 


5.  Nebraska  Constitutional  Amendment  (1912). 

Article  III,  Section  1.  (Legislative  authority).  The  legisla- 
tive authority  of  the  state  shall  be  vested  in  a legislature  consisting 
of  a senate  and  house  of  representatives,  but  the  people  reserve  to 
themselves  power  to  propose  laws,  and  amendments  to  the  constitution, 
and  to  enact  or  reject  the  same  at  the  polls  independent  of  the  legis- 
lature, and  also  reserve  power  at  their  own  option  to  approve  or  reject 
at  the  polls  any  act,  item,  section,  or  part  of  any  act  passed  by  the 
legislature. 

Sec.  la.  (Initiative).  The  first  power  reserved  by  the  people 
is  the  initiative.  Ten  per  cent  of  the  legal  voters  of  the  state,  so 
distributed  as  to  include  five  per  cent  of  the  legal  voters  in  each 
of  two-fifths  of  the  counties  of  the  state,  may  propose  any  measure 
by  petition,  which  shall  contain  the  full  text  of  the  measure  so  pro- 
posed. Provided,  that  proposed  Constitutional  Amendments  shall 
require  a petition  of  fifteen  per  cent  of  the  legal  voters  of  the  state 
distributed  as  above  provided.  Initiative  petitions  (except  for  mu- 
nicipal and  wholly  local  legislation)  shall  be  filed  with  the  Secretary 
of  State  and  be  by  him  submitted  to  the  voters  at  the  first  regular 
state  election  held  not  less  than  four  months  after  such  filing.  The 
same  measure,  either  in  form  or  in  essential  substance,  shall  not  be 
submitted  to  the  people  by  initiative  petition  (either  affirmatively  or 
negatively)  oftener  than  once  in  three  years.  If  conflicting  measures 
submitted  to  the  people  at  the  same  election  shall  be  approved  the  one 
receiving  the  highest  number  of  affirmative  votes  shall  thereby  become 
law  as  to  all  conflicting  provisions.  The  Constitutional  limitations  as 
to  scope  and  subject  matter  of  statutes  enacted  by  the  legislature  shall 
apply  to  those  enacted  by  the  initiative. 

Sec.  lb.  (Referendum.)  The  second  power  reserved  is  the  ref- 
erendum. It  may  be  ordered  by  a petition  of  ten  per  cent  of  the  legal 
voters  of  the  state  distributed  as  required  for  initiative  petitions. 
Referendum  petitions  against  measures  passed  by  the  legislature  shall 
be  filed  with  the  Secretary  of  State  within  ninety  days  after  the 


143 


legislature  enacting  the  same  adjourns  sine  die,  or  for  a period  longer 
than  ninety  days ; and  elections  thereon  shall  be  had  at  the  first  regu- 
lar state  election  held  not  less  than  thirty  days  after  such  filing. 

Sec.  lc.  (Referendum — Suspension  of  measures).  The  refer- 

endum may  be  ordered  upon  any  act  except  acts  making  appropriations 
for  the  expenses  of  the  state  government,  and  state  institutions  ex- 
isting at  the  time  such  act  is  passed.  When  the  referendum  is  ordered 
upon  an  act  or  any  part  thereof  it  shall  suspend  its  operation  until 
the  same  is  approved  by  the  voters ; provided,  that  emergency  acts,  or 
acts  for  the  immediate  preservation  of  the  public  peace,  health,  or 
safety  shall  continue  in  effect  until  rejected  by  the  voters  or  repealed 
by  the  legislature.  Filing  of  a referendum  petition  against  one  or 
more  items,  sections,  or  parts  of  an  act  shall  not  delay  the  remainder 
of  the  measure  from  becoming  operative. 

Sec.  Id.  (Effect  of  act;  ballots  necessary;  veto;  returns  of 
election).  Nothing  in  this  section  shall  be  construed  to  deprive  any 
member  of  the  legislature  of  the  right  to  introduce  any  measure. 
The  whole  number  of  votes  cast  for  governor  at  the  regular  election 
last  preceding  the  filing  of  any  initiative  or  referendum  petition  shall 
be  the  basis  on  which  the  number  of  legal  voters  required  to  sign 
such  petition  shall  be  computed.  The  veto  power  of  the  governor 
shall  not  extend  to  measures  initiated  by  or  referred  to  the  people. 
All  such  measures  shall  become  the  law  or  a part  of  the  constitution 
when  approved  by  a majority  of  the  votes  cast  thereon,  provided,  the 
votes  cast  in  favor  of  said  initiative  measure  or  part  of  said  Consti- 
tution shall  constitute  thirty-five  per  cent  (35%)  of  the  total  vote 
cast  at  said  election,  and  not  otherwise,  and  shall  take  effect  upon 
proclamation  by  the  governor,  which  shall  be  made  within  ten  days 
of  the  completion  of  the  official  canvass.  The  vote  upon  initiative 
and  referendum  measures  shall  be  returned  and  canvassed  in  the 
same  manner  as  is  prescribed  in  the  case  of  presidential  electors. 
The  method  of  submitting  and  adopting  amendments  to  the  consti- 
tution provided  by  this  section  shall  be  supplementary  to  the  method 
prescribed  in  the  article  of  this  constitution,  entitled  “Amendments” 
and  the  latter  shall  in  no  case  be  construed  to  conflict  herewith. 
This  amendment  shall  be  self-executing,  but  legislation  may  be  en- 
acted especially  to  facilitate  its  operation.  In  submitting  petitions 
and  orders  for  the  initiative  and  the  referendum,  the  Secretary  of 
State  and  all  other  officers  shall  be  guided  by  this  amendment  and 
the  general  laws  until  additional  legislation  shall  be  especially  pro- 
vided therefor ; all  propositions  submitted  in  pursuance  hereof  shall 
be  submitted  in  a non-partisan  manner  and  without  any  indication  or 
suggestion  on  the  ballot  that  they  have  been  approved  or  endorsed 
by  any  political  party  or  organization,  and  provided  further  that  only 
the  title  of  measures  shall  be  printed  on  the  ballot  and,  when  two 
or  more  measures  have  the  same. title  they  shall  be  numbered  con- 
secutively in  the  order  of  filing  with  the  Secretary  of  State  and  in- 
cluding the  name  of  the  first  petitioner. 

Sec.  10.  (Bill  style,  final  passage).  The  style  of  all  bills  shall 
be  “Be  it  enacted  by  the  people  of  the  State  of  Nebraska”,  and  no 


144 


law  shall  be  enacted  except  by  bill.  No  bill  shall  be  passed  by  the 
legislature  unless  by  assent  of  a majority  of  all  the  members  elected 
to  each  house  of  the  legislature  and  the  question  upon  final  passage 
shall  be  taken  immediately  upon  its  last  reading  and  the  yeas  and  nays 
shall  be  entered  upon  the  journal. 


6.  Massachusetts  Constifutional  Amendment  (1918). 

ARTICLE  XLVIII.  I.  DEFINITION. 

Legislative  power  shall  continue  to  be  vested  in  the  general  court ; 
but  the  people  reserve  to  themselves  the  popular  initiative,  which  is 
the  power  of  a specified  number  of  voters  to  submit  constitutional 
amendments  and  laws  to  the  people  for  approval  or  rejection;  and  the 
popular  referendum,  which  is  the  power  of  a specified  number  of 
voters  to  submit  laws,  enacted  by  the  general  court,  to  the  people 
for  their  ratification  or  rejection. 

THE  INITIATIVE.  II.  INITIATIVE  PETITIONS. 

Section  1.  Contents. — An  initiative  petition  shall  set  forth  the 
full  text  of  the  constitutional  amendment  or  law,  hereinafter  desig- 
nated as  the  measure,  which  is  proposed  by  the  petition. 

Sec.  2.  Excluded  Matters. — No  measure  that  relates  to  religion, 
religious  practices  or  religious  institutions ; or  to  the  appointment, 
qualification,  tenure,  removal,  recall  or  compensation  of  judges;  or 
to  the  reversal  of  a judicial  decision;  or  to  the  powers,  creation  or 
abolition  of  courts ; or  the  operation  of  which  is  restricted  to  a par- 
ticular town,  city  or  other  political  division  or  to  particular  districts 
or  localities  of  the  commonwealth ; or  that  makes  a specific  appropria- 
tion of  money  from  the  treasury  of  the  commonwealth,  shall  be  pro- 
posed by  an  initiative  petition ; but  if  a law  approved  by  the  people 
is  not  repealed,  the  general  court  shall  raise  by  taxation  or  otherwise 
and  shall  appropriate  such  money  as  may  be  necessary  to  carry  such 
law  into  effect. 

Neither  the  eighteenth  amendment  of  the  constitution,  as  approved 
and  ratified  to  take  effect  on  the  first  day  of  October  in  the  year  nine- 
teen hundred  and  eighteen,  nor  this  provision  for  its  protection,  shall 
be  the  subject  of  an  initiative  amendment. 

No  proposition  inconsistent  with  any  one  of  the  following  rights 
of  the  individual,  as  at  present  declared  in  the  declaration  of  rights, 
shall  be  the  subject  of  an  initiative  or  referendum  petition:  The 

right  to  receive  compensation  for  private  property  appropriated  to 
public  use;  the  right  of  access  to  and  protection  in  courts  of  justice; 
the  right  of  trial  by  jury;  protection  from  unreasonable  search,  un- 
reasonable bail  and  the  law  martial ; freedom  of  the  press ; freedom  of 
speech;  freedom  of  elections;  and  the  right  of  peaceable  assembly. 

No  part  of  the  constitution  specifically  excluding  any  matter  from 
the  operation  of  the  popular  initiative  and  referendum  shall  be  the 
subject  of  an  initiative  petition;  nor  shall  this  section  be  the  subject 
of  such  a petition. 


145 


The  limitations  on  the  legislative  power  of  the  general  court  in 
the  constitution  shall  extend  to  the  legislative  power  of  the  people 
as  exercised  hereunder. 

Sec.  3.  Mode  of  Originating. — Such  petition  shall  first  be  signed 
by  ten  qualified  voters  of  the  commonwealth  and  shall  then  be  sub- 
mitted to  the  attorney-general,  and  if  he  shall  certify  that  the  measure 
is  in  proper  form  for  submission  to  the  people,  and  that  it  is  not,  either 
affirmatively  or  negatively,  substantially  the  same  as  any  measure 
which  has  been  qualified  for  submission  or  submitted  to  the  people 
within  three  years  of  the  succeeding  first  Wednesday  in  December 
and  that  it  contains  only  subjects  not  excluded  from  the  popular 
initiative  and  which  are  related  or  which  are  mutually  dependent,  it 
may  then  be  filed  with  the  secretary  of  the  commonwealth.  The 
secretary  of  the  commonwealth  shall  provide  blanks  for  the  use  of 
subsequent  signers,  and  shall  print  at  the  top  of  each  blank  a de- 
scription of  the  proposed  measure  as  such  description  will  appear  on 
the  ballot  together  with  the  names  and  residences  of  the  first  ten 
signers.  All  initiative  petitions,  with  the  first  ten  signatures  attached, 
shall  be  filed  with  the  secretary  of  the  commonwealth  not  earlier  than 
the  first  Wednesday  of  the  September  before  the  assembling  of  the 
general  court  into  which  they  are  to  be  introduced  and  the  remainder 
of  the  required  signatures  shall  be  filed  not  later  than  the  first  Wednes- 
day of  the  following  December. 

Sec.  4.  Transmission  to  the  General  Court. — If  an  initiative 
petition,  signed  by  the  required  number  of  qualified  voters,  has  been 
filed  as  aforesaid,  the  secretary  of  the  commonwealth  shall,  upon  the 
assembling  of  the  general  court,  transmit  it  to  the  clerk  of  the  house 
of  representatives,  and  the  proposed  measure  shall  then  be  deemed 
to  be  introduced  and  pending. 

III.  LEGISLATIVE  ACTION.  GENERAL  PROVISIONS. 

Sec.  1.  Reference  to  Committee. — If  a measure  is  introduced 
into  the  general  court  by  initiative  petition,  it  shall  be  referred  to  a 
committee  thereof,  and  the  petitioners  and  all  parties  in  interest  shall 
b*e  heard,  and  the  measure  shall  be  considered  and  reported  upon  to  the 
general  court  with  the  committee’s  recommendations,  and  the  reasons 
therefor,  in  writing.  Majority  and  minority  reports  shall  be  signed 
by  the  members  of  said  committee. 

Sec.  2.  Legislative  Substitutes. — The  general  court  may,  by 
resolution  passed  by  yea  and  nay  vote,  either  by  the  two  houses 
separately,  or  in  the  case  of  a constitutional  amendment  by  a majority 
of  those  voting  thereon  in  joint  session  in  each  of  two  years  as  here- 
inafter provided,  submit  to  the  people  a substitute  for  any  measure 
introduced  by  initiative  petition,  such  substitute  to  be  designated  on 
the  ballot  as  the  legislative  substitute  for  such  an  initiative  measure 
and  to  be  grouped  with  it  as  an  alternative  therefor. 

IV.  LEGISLATIVE  ACTION  ON  PROPOSED  CONSTITUTIONAL  AMENDMENTS. 

Section  1.  Definition. — A proposal  for  amendment  to  the  con- 
stitution introduced  into  the  general  court  by  initiative  petition  shall 
be  designated  an  initiative  amendment,  and  an  amendment  introduced 


146 


by  a member  of  either  house  shall  be  designated  a legislative  substi- 
tute or  a legislative  amendment. 

Sec.  2.  Joint  Session. — If  a proposal  for  a specific  amendment 
of  the  constitution  is  introduced  into  the  general  court  by  initiative 
petition  signed  by  not  less  than  twenty-five  thousand  qualified  voters, 
or  if  in  case  of  a proposal  for  amendment  introduced  into  the  general 
court  by  a member  of  either  house,  consideration  thereof  in  joint 
session  is  called  for  by  vote  of  either  house,  such  proposal  shall, 
not  later  than  the  second  Wednesday  in  June,  be  laid  before  a joint 
session  of  the  two  houses,  at  which  the  president  of  the  senate  shall 
preside ; and  if  the  two  houses  fail  to  agree  upon  a time  for  holding 
any  joint  session  hereby  required,  or  fail  to  continue  the  same  from 
time  to  time  until  final  action  has  been  taken  upon  all  amendments 
pending,  the  governor  shall  call  such  joint  session  or  continuance 
thereof. 

Sec.  3.  Amendment  of  Proposed  Amendments. — A proposal  for 
an  amendment  to  the  constitution  introduced  by  initiative  petition  shall 
be  voted  upon  in  the  form  in  which  it  was  introduced,  unless  such 
amendment  is  amended  by  vote  of  three-fourths  of  the  members 
voting  thereon  in  joint  session,  which  vote  shall  be  taken  by  call 
of  the  yeas  and  nays  if  called  for  by  any  member. 

Sec.  4.  Legislative  Action. — Final  legislative  action  in  the.  joint 
session  upon  any  amendment  shall  be  taken  only  by  call  of  the  yeas 
and  nays,  which  shall  be  entered  upon  the  journals  of  the  two 
houses ; and  an  unfavorable  vote  at  any  stage  preceding  final  action 
shall  be  verified  by  call  of  the  yeas  and  nays,  to  be  entered  in  like 
manner.  At  such  joint  session  a legislative  amendment  receiving 
the  affirmative  votes  of  a majority  of  all  the  members  elected,  or  an 
initiative  amendment  receiving  the  affirmative  votes  of  not  less  than 
one-fourth  of  all  the  members  elected,  shall  be  referred  to  the  next 
general  court. 

Sec.  5.  Submission  to  the  People. — If  in  the  next  general  court 
a legislative  amendment  shall  again  be  agreed  to  in  joint  session  by  a 
majority  of  all  the  members  elected,  or  if  an  initiative  amendment  or 
a legislative  substitute- shall  again  receive  the  affirmative  votes  of  at 
least  one-fourth  of  all  the  members  elected,  such  fact  shall  be  certi- 
fied by  the  clerk  of  such  joint  session  to  the  secretary  of  the  com- 
monwealth, who  shall  submit  the  amendment  to  the  people  at  the  next 
state  election.  Such  amendment  shall  become  part  of  the  constitution 
if  approved,  in  the  case  of  a legislative  amendment,  by  a majority 
of  the  voters  voting  thereon,  or  if  approved,  in  the  case  of  an  in- 
itiative amendment  or  a legislative  substitute,  by  voters  equal  in 
number  to  at  least  thirty  per  cent  of  the  total  number  of  ballots  cast 
at  such  state  election  and  also  by  a majority  of  the  voters  voting 
on  such  amendment. 

V.  LEGISLATIVE  ACTION  ON  PROPOSED  LAWS. 

Section  1.  Legislative  Procedure. — If  an  initiative  petition  for  a 
law  is  introduced  into  the  general  court,  signed  by  not  less  than  twenty 
thousand  qualified  voters,  a vote  shall  be  taken  by  yeas  and  nays 
in  both  houses  before  the  first  Wednesday  of  June  upon  the  enact- 


147 


ment  of  such  law  in  the  form  in  which  it  stands  in  such  petition.  If 
the  general  court  fails  to  enact  such  law  before  the  first  Wednesday 
of  June,  and  if  such  petition  is  completed  by  filing  with  the  secretary 
of  the  commonwealth,  not  earlier  than  the  first  Wednesday  of  the 
following  July  nor  later  than  the  first  Wednesday  of  the  following 
August,  not  less  than  five  thousand  signatures  of  qualified  voters, 
in  addition  to  those  signing  such  initiative  petition,  which  signatures 
must  have  been  obtained  after  the  first  Wednesday  of  June  aforesaid, 
then  the  secretary  of  the  commonwealth  shall  submit  such  proposed 
law  to  the  people  at  the  next  state  election.  If  it  shall  be  approved 
by  voters  equal  in  number  to  at  least  thirty  per  cent  of  the  total  num- 
ber of  ballots  cast  at  such  state  election  and  also  by  a majority  of  the 
voters  voting  on  such  law,  it  shall  become  law,  and  shall  take  effect 
in  thirty  days  after  such  state  election  or  at  such  time  after  such 
election  as  may  be  provided  in  such  law. 

Sec.  2.  Amendment  by  Petitioners. — If  the  general  court  fails 
to  pass  a proposed  law  before  the  first  Wednesday  of  June,  a majority 
of  the  first  ten  signers  of  the  initiative  petition  therefor  shall  have 
the  right,  subject  to  certification  by  the  attorney-general  filed  as  here- 
inafter provided,  to  amend  the  measure  which  is  the  subject  of  such 
petition.  An  amendment  so  made  shall  not  invalidate  any  signature 
attached  to  the  petition.  If  the  measure  so  amended,  signed  by  a 
majority  of  the  first  ten  signers,  is  filed  with  the  secretary  of  the 
commonwealth  before  the  first  Wednesday  of  the  following  July, 
together  with  a certificate  signed  by  the  attorney-general  to  the  effect 
that  the  amendment  made  by  such  proposers  is  in  his  opinion  per- 
fecting in  its  nature  and  does  not  materially  change  the  substance 
of  the  measure,  and  if  such  petition  is  completed  by  filing  with  the 
secretary  of  the  commonwealth,  not  earlier  than  the  first  Wednesday 
of  the  following  July  nor  later  than  the  first  Wednesday  of  the 
following  August,  not  less  than  five  thousand  signatures  of  quali- 
fied voters,  in  addition  to  those  signing  such  initiative  petition,  which 
signatures  must  have  been  obtained  after  the  first  Wednesday  of 
June  aforesaid,  then  the  secretary  of  the  commonwealth  shall  submit 
the  measure  to  the  people  in  its  amended  form. 

VI.  CONFLICTING  AND  ALTERNATIVE  MEASURES. 

If  in  any  judicial  proceeding,  provisions  of  constitutional  amend- 
ments or  of  laws  approved  by  the  people  at  the  same  election  are 
held  to  be  in  conflict,  then  the  provisions  contained  in  the  measure 
that  received  the  largest  number  of  affirmative  votes  at  such  election 
shall  govern. 

A constitutional  amendment  approved  at  any  election  shall  gov- 
ern any  law  approved  at  the  same  election. 

The  general  court,  by  resolution  passed  as  hereinbefore  set  forth, 
may  provide  for  grouping  and  designating  upon  the  ballot  as  con- 
flicting measures  or  as  alternative  measures,  only  one  of  which  is 
to  be  adopted,  any  two  or  more  proposed  constitutional  amendments 
or  laws  which  have  been  or  may  be  passed  or  qualified  for  submission 
to  the  people  at  any  one  election : provided,  that  a proposed  constitu- 
tional amendment  and  a proposed  law  shall  not  be  so  grouped, 


148 


and  that  the  ballot  shall  afford  an  opportunity  to  the  voter  to  vote 
for  each  of  the  measures  or  for  only  one  of  the  measures,  as  may  be 
provided  in  said  resolution,  or  against  each  of  the  measures  so 
grouped  as  conflicting  or  as  alternative.  In  case  more  than  one 
of  "the  measures  so  grouped  shall  receive  the  vote  required  for  its 
approval  as  herein  provided,  only  that  one  for  which  the  largest 
affirmative  vote  was  cast  shall  be  deemed  to  be  approved. 

THE  REFERENDUM.  I.  WHEN  STATUTES  SHALL  TAKE  EFFECT. 

No  law  passed  by  the  general  court  shall  take  effect  earlier  than 
ninety  days  after  it  has  become  a law,  excepting  laws  declared  to  be 
emergency  laws  and  laws  which  may  not  be  made  the  subject  of  a 
referendum  petition,  as  herein  provided. 

II.  EMERGENCY  MEASURES. 

A law  declared  to  be  an  emergency  law  shall  contain  a preamble 
setting  forth  the  facts  constituting  the  emergency,  and  shall  contain 
the  statement  that  such  law  is  necessary  for  the  immediate  preserva- 
tion of  the  public  peace,  health,  safety  or  convenience.  A separate 
vote  shall  be  taken  on  the  preamble  by  call  of  the  yeas  and  nays, 
which  shall  be  recorded,  and  unless  the  preamble  is  adopted  by  two- 
thirds  of  the  members  of  each  house  voting  thereon,  the  law  shall 
not  be  an  emergency  law ; but  if  the  governor,  at  any  time  before 
the  election  at  which  it  is  to  be  submitted  to  the  people  on  referendum, 
files  with  the  secretary  of  the  commonwealth  a statement  declaring 
that  in  his  opinion  the  immediate  preservation  of  the  public  peace, 
health,  safety  or  convenience  requires  that  such  law  should  take  effect 
forthwith  and  that  it  is  an  emergency  law  and  setting  forth  the  facts 
constituting  the  emergency,  then  such  law,  if  not  previously  suspended 
as  hereinafter  provided,  shall  take  effect  without  suspension,  or  if 
such  law  has  been  so  suspended  such  suspension  shall  thereupon 
terminate  and  such  law  shall  thereupon  take  effect : but  no  grant  of 
any  franchise  or  amendment  thereof,  or  renewal  or  extension  thereof 
for  more  than  one  year  shall  be  declared  to  be  an  emergency  law. 

III.  REFERENDUM  PETITIONS. 

Section  1.  Contents. — A referendum  petition  may  ask  for  a ref- 
erendum to  the  people  upon  any  law  enacted  by  the  general  court 
which  is  not  herein  expressly  excluded. 

Sec.  2.  Excluded  Matters.- — No  law  that  relates  to  religion,  re- 
ligious practices  or  religious  institutions ; or  to  the  appointment, 
qualification,  tenure,  removal  or  compensation  of  judges;  or  to  the 
powers,  creation  or  abolition  of  courts ; or  the  operation  of  which  is 
restricted  to  a particular  town,  city  or  other  political  division  or  to 
particular  districts  or  localities  of  the  commonwealth;  or  that  appro- 
priates money  for  the  current  or  ordinary  expenses  of  the  common- 
wealth or  . for  any  of  its  departments,  boards,  commissions  or  insti- 
tutions shall  be  the  subject  of  a referendum  petition. 

Sec.  3.  Mode  of  Petitioning  for  the  Suspension  of  a Law  and 
a Referendum  thereon. — A petition  asking  for  a referendum  on  a law, 
and  requesting  that  the  operation  of  such  law  be  suspended,  shall 
first  be  signed  by  ten  qualified  voters  and  shall  then  be  filed  with  the 


149 


secretary  of  the  commonwealth  not  later  than  thirty  days  after  the 
law  that  is  the  subject  of  the  petition  has  become  law.  The  secretary 
of  the  commonwealth  shall  provide  blanks  for  the  use  of  subsequent 
signers,  and  shall  print  at  the  top  of  each  blank  a description  of  the 
proposed  law  as  such  description  will  appear  on  the  ballot  together 
with  the  names  and  residences  of  the  first  ten  signers.  If  such  petition 
is  completed  by  filing  with  the  secretary  of  the  commonwealth  not 
later  than  ninety  days  after  the  law  which  is  the  subject  of  the 
petition  has  become  law  the  signatures  of  not  less  than  fifteen  thousand 
qualified  voters  of  the  commonwealth,  then  the  operation  of  such 
law  shall  be  suspended,  and  the  secretary  of  the  commonwealth  shall 
submit  such  law  to  the  people  at  the  next  state  election,  if  thirty  days 
intervene  between  the  date  when  such  petition  is  filed  with  the  sec- 
retary of  the  commonwealth  and  the  date  for  holding  such  state  elec- 
ion;  if  thirty  days  do  not  so  intervene,  then  such  law  shall  be  sub- 
mitted to  the  people  at  the  next  following  state  election,  unless  in  the 
meantime  it  shall  have  been  repealed ; and  if  it  shall  be  approved  by  a 
majority  of  the  qualified  voters  voting  thereon,  such  law  shall,  subject 
to  the  provisions  of  the  constitution,  take  effect  in  thirty  days  after 
such  election,  or  at  such  time  after  such  election  as  may  be  provided  in 
such  law ; if  not  so  approved  such  law  shall  be  null  and  void ; but  no 
such  law  shall  be  held  to  be  disapproved  if  the  negative  vote  is  less 
than  thirty  per  cent  of  the  total  number  of  ballots  cast  at  such  state 
election. 

Sec.  4.  Petitions  for  Referendum  on  an  Emergency  Law  or  a 
Law  the  Suspension  of  which  is  not  asked  for. — A referendum 
petition  may  ask  for  the  repeal  of  an  emergency  law  or  of  a law  which 
takes  effect  because  the  referendum  petition  does  not  contain  a request 
for  suspension,  as  aforesaid.  Such  petition  shall  first  be  signed  by 
ten  qualified  voters  of  the  commonwealth,  and  shall  then  be  filed  with 
the  secretary  of  the  commonwealth  not  later  than  thirty  days  after 
the  law  which  is  the  subject  of  the  petition  has  become  law.  The  sec- 
retary of  the  commonwealth  shall  provide  blanks  for  the  use  of  sub- 
sequent signers,  and  shall  print  at  the  top  of  each  blank  a description 
of  the  proposed  law  as  such  description  will  appear  on  the  ballot 
together  with  the  names  and  residences  of  the  first  ten  signers. 
If  such  petition  filed  as  aforesaid  is  completed  by  filing  with  the 
secretary  of  the  commonwealth  not  later  than  ninety  days  after  the  law 
which  is  the  subject  of  the  petition  has  become  law  the  signatures 
of  not  less  than  ten  thousand  qualified  voters  of  the  commonwealth 
protesting  against  such  law  and  asking  for  a referendum  thereon,  then 
the  secretary  of  the  commonwealth  shall  submit  such  law  to  the  people 
at  the  next  state  election,  if  thirty  days  intervene  between  the  date 
when  such  petition  is  filed  with  the  secretary  of  the  commonwealth  and 
the  date  for  holding  such  state  election.  If  thirty  days  do  not  so  inter- 
vene, then  it  shall  be  submitted  to  the  people  at  the  next  following 
state  election,  unless  in  the  meantime  it  shall  have  been  repealed ; and 
if  it  shall  not  be  approved  by  a majority  of  the  qualified  voters  voting 
thereon,  it  shall,  at  the  expiration  of  thirty  days  after  such  election, 
be  thereby  repealed;  but  no  such  law  shall  be  held  to  be  disapproved 


150 


if  the  negative  vote  is  less  than  thirty  per  cent  of  the  total  number  of 
ballots  cast  at  such  state  election. 

GENERAL  PROVISIONS.  1.  IDENTIFICATION  AND  CERTIFICATION  OF 

SIGNATURES. 

Provision  shall  be  made  by  law  for  the  proper  identification  and 
certification  of  signatures  to  the  petitions  hereinbefore  referred  to, 
and  for  penalties  for  signing  any  such  petition,  or  refusing  to  sign  it, 
for  money  or  other  valuable  consideration,  and  for  the  forgery  of 
signatures  thereto.  Pending  the  passage  of  such  legislation  all  pro- 
visions of  law  relating  to  the  identification  and  certification  of  signa- 
tures to  petitions  for  the  nomination  of  candidates  for  state  offices 
or  to  penalties  for  the  forgery  of  such  signatures  shall  apply  to  the 
signatures  to  the  petitions  herein  referred  to.  The  general  court  may 
provide  by  law  that  no  co-partnership  or  corporation  shall  undertake 
for  hire  or  reward  to  circulate  petitions,  may  require  individuals  who 
circulate  petitions  for  hire  or  reward  to  be  licensed,  and  may  make 
other  reasonable  regulations  to  prevent  abuses  arising  from  the  circu- 
lation of  petitions  for  hire  or  reward. 

II.  LIMITATION  ON  SIGNATURES. 

Not  more  than  one-fourth  of  the  certified  signatures  on  any  peti- 
tion shall  be  those  of  registered  voters  of  any  one  county. 

III.  FORM  OF  BALLOT. 

Each  proposed  amendment  to  the  constitution,  and  each  law  sub- 
mitted to  the  people,  shall  be  described  on  the  ballots  by  a description 
to  be  determined  by  the  attorney-general,  subject  to  such  provision  as 
may  be  made  by  law,  and  the  secretary  of  the  commonwealth  shall 
give  each  question  a number  and  cause  such  question,  except  as  other- 
wise authorized  herein,  to  be  printed  on  the  ballot  in  the  following 
form : 

In  the  case  of  an  amendment  to  the  constitution: 

Shall  an  amendment  to  the  constitution  (here  insert 
description,  and  state,  in  distinctive  type,  whether  ap- 
proved or  disapproved  by  the  general  court,  and  by 
what  vote  thereon)  be  approved? 

In  the  case  of  a law:  Shall  a law  (here  insert  de- 
scription, and  state,  in  distinctive  type,  whether  ap- 
proved or  disapproved  by  the  general  court,  and  by  what 
vote  thereon)  be  approved? 

IV.  INFORMATION  FOR  VOTERS. 

The  secretary  of  the  commonwealth  shall  cause  to  be  printed 
and  sent  to  each  registered  voter  in  the  commonwealth  the  full  text 
of  every  measure  to  be  submitted  to  the  people,  together  with  a copy 
of  the  legislative  committee’s  majority  and  minority  reports,  if  there 
be  such,  with  the  names  of  the  majority  and  minority  members 
thereon,  a statement  of  the  votes  of  the  general  court  on  the  measure, 
and  a description  of  the  measure  as  such  description  will  appear  on 
the  ballot;  and  shall,  in  such  manner  as  may  be  provided  by  law, 


Yes. 

No. 

Yes. 

No. 

151 


cause  to  be  prepared  and  sent  to  the  voters  other  information  and 
arguments  for  and  against  the  measure. 

V.  THE  VETO  POWER  OF  THE  GOVERNOR. 

The  veto  power  of  the  governor  shall  not  extend  to  measures 
approved  by  the  people. 

VI.  THE  GENERAL  COURTIS  POWER  OF  REPEAL. 

Subject  to  the  veto  power  of  the  governor  and  to  the  right  of 
referendum  by  petition  as  herein  provided,  the  general  court  may 
amend  or  repeal  a law  approved  by  the  people. 

VII.  AMENDMENT  DECLARED  TO  BE  SELF-EXECUTING. 

This  article  of  amendment  to  the  constitution  is  self-executing, 
but  legislation  not  inconsistent  with  anything  herein  contained  may  be 
enacted  to  facilitate  the  operation  of  its  provisions. 


7.  North  Dakota  Constitutional  Amendment  (1918). 

Article  II,  Sec.  25.  The  legislative  power  of  this  state  shall  be 
vested  in  a legislature  consisting  of  a senate  and  a house  of  repre- 
sentatives. The  people,  however,  reserve  the  power,  first,  to  propose 
measures  and  to  enact  or  reject  the  same  at  the  polls;  second,  to 
approve  or  reject  at  the  polls  any  measure  or  any  item,  section,  part 
or  parts  of  any  measure  enacted  by  the  legislature. 

The  first  power  reserved  is  the  initiative.  Ten  thousand  electors 
at  large  may  propose  any  measure  by  initiative  petition.  Every  such 
petition  shall  contain  the  full  text  of  the  measure  and  shall  be  filed 
with  the  secretary  of  state  not  less  than  ninety  days  before  the  elec- 
tion at  which  it  is  to  be  voted  upon. 

The  second  power  reserved  is  the  referendum.  Seven  thousand 
electors  at  large  may,  by  referendum  petition,  suspend  the  operation 
of  any  measure  enacted  by  the  legislature,  except  an  emergency  meas- 
ure. But  the  filing  of  a referendum  petition  against  one  or  more  items, 
sections  or  parts  of  any  measure,  shall  not  prevent  the  remainder  from 
going  into  effect.  Such  petition  shall  be  filed  with  the  secretary  of 
state  not  later  than  ninety  days  after  the  adjournment  of  the  session 
of  the  legislature  at  which  such  measure  was  enacted. 

Each  measure  initiated  by  or  referred  to  the  electors,  shall  be 
submitted  by  its  ballot  title,  which  shall  be  placed  upon  the  ballot  by 
by  the  secretary  of  state  and  shall  be  voted  upon  at  any  state-wide 
election  designated  in  the  petition,  or  at  a special  election  called  by  the 
governor.  The  result  of  the  vote  upon  any  measure  shall  be  canvassed 
and  declared  by  the  board  of  canvassers. 

Any  measure,  except  an  emergency  measure,  submitted  to  the 
electors  of  the  state,  shall  become  a law  when  approved  by  a majority 
of  the  votes  cast  thereon.  And  such  law  shall  go  into  effect  on  the 
30th  day  after  the  election,  unless  otherwise  specified  in  the  measure. 

If  a referendum  petition  is  filed  against  an  emergency  measure, 
such  measure  shall  be  a law  until  voted  upon  by  the  electors.  And  if 


it  is  then  rejected  by  a majority  of  the  votes  cast  thereon,  it  shall  be 
thereby  repealed.  Any  such  measure  shall  be  submitted  to  the  electors 
at  a special  election  if  so  ordered  by  the  governor,  or  if  the  referen- 
dum petition  filed  against  it  shall  be  signed  by  thirty  thousand  electors 
at  large.  Such  special  election  shall  be  called  by  the  governor,  and 
shall  be  held  not  less  than  one  hundred  nor  more  than  one  hundred 
thirty  days  after  the  adjournment  of  the  session  of  the  legislature. 

The  secretary  of  state  shall  pass  upon  each  petition,  and  if  he 
finds  it  insufficient,  he  shall  notify  the  “Committee  for  the  Petition- 
ers” and  allow  twenty  days  for  correction  or  amendment.  All  deci- 
sions of  the  secretary  of  state  in  regard  to  any  such  petition  shall  be 
subject  to  review  by  the  supreme  court.  But  if  the  sufficiency  of  such 
petition  is  being  reviewed  at  the  time  the  ballot  is  prepared,  the  secre- 
tary of  state  shall  place  the  measure  on  the  ballot  and  no  subsequent 
decision  shall  invalidate  such  measure  if  it  is  at  such  election  approved 
by  a majority  of  the  votes  cast  thereon.  If  proceedings  are  brought 
against  any  petition  upon  any  ground,  the  burden  of  proof  shall  be 
upon  the  party  attacking  it. 

No  law  shall  be  enacted  limiting  the  number  of  copies  of  a peti- 
tion which  may  be  circulated.  Such  copies  shall  become  part  of  the 
original  petition  when  filed  or  attached  thereto.  Nor  shall  any  law  be 
enacted  prohibiting  any  person  from  giving  or  receiving  compensa- 
tion for  circulating  the  petitions,  nor  in  any  manner  interfering  with 
the  freedom  in  securing  signatures  to  petitions. 

Each  petition  shall  have  printed  thereon  a ballot  title,  which 
shall  fairly  represent  the  subject  matter  of  the  measure,  and  the 
names  of  at  least  five  electors  who  shall  constitute  the  “committee 
for  the  petitioners”  and  who  shall  represent  and  act  for  the  petitioners. 

All  measures  submitted  to  the  electors  shall  be  published  by 
the  state  as  follows : “The  secretary  of  state  shall  cause  to  be 

printed  and  mailed  to  each  elector  a publicity  pamphlet,  containing  a 
copy  of  each  measure  together  with  its  ballot  title,  to  be  submitted 
at  any  election.  Any  citizen,  or  the  officers  of  any  organization, 
may  submit  to  the  secretary  of  state,  for  publication  in  such  pamphlet, 
arguments  concerning  any  measure  therein,  upon  first  subscribing 
their  names  and  addresses  thereto  and  paying  the  fee  therefor, 
which,  until  otherwise  fixed  by  the  legislature,  shall  be  the  sum  of  two 
hundred  dollars  per  page”. 

The  enacting  clause  of  all  measures  initiated  by  the  electors, 
shall  be:  “Be  it  enacted  by  the  people  of  the  State  of  North  Da- 

kota.” In  submitting  measures,  to  the  electors,  the  secretary  of  state 
and  all  other  officials  shall  be  guided  by  the  election  laws  until  addi- 
tional legislation  shall  be  provided. 

If  conflicting  measures  initiated  by  or  referred  to  the  electors 
shall  be  approved  by  a majority  of  the  votes  cast  thereon,  the  one 
receiving  the  highest  number  of  affirmative  votes  shall  become  the 
law. 

The  word  “measure”  as  used  herein,  shall  include  any  law  or 
amendment  thereto,  resolution,  legislative  proposal  or  enactment  of 
any  character. 


153 


The  veto  power  of  the  governor  shall  not  extend  to  the  measures 
initiated  by  or  referred  to  the  electors.  No  measure  enacted  or 
approved  by  a vote  of  the  electors  shall  be  repealed  or  amended  by  the 
legislature,  except  upon  a yea  and  nay  vote  upon  roll  call  of  two- 
thirds  of  all  the  members  elected  to  each  house. 

This  section  shall  be  self  executing  and  all  of  its  provisions  shall 
be  treated  as  mandatory.  Laws  may  be  enacted  to  facilitate  its  oper- 
ation, but  no  laws  shall  be  enacted  to  hamper,  restrict  or  impair  the 
exercise  of  the  rights  herein  reserved  to  the  people. 

Article  II,  Section  67.  No  act  of  the  legislative  assembly  shall 
take  effect  until  July  1st  after  the  close  of  the  session,  unless  the 
legislature  by  a vote  of  two-thirds  of  the  members  present  and  voting, 
in  each  house,  shall  declare  it  an  emergency  measure,  which  declara- 
tion shall  be  set  forth  in  the  act,  provided,  however,  that  no  act 
granting  a franchise  or  special  privilege,  or  act  creating  any  vested 
right  or  interest  other  than  in  the  state,  shall  be  declared  an  emer- 
gency measure.  An  emergency  measure  shall  take  effect  and  be  in 
force  from  and  after  its  passage  and  approval  by  the  governor. 

Article  XV,  Section  202.  Any  amendment  or  amendments  to 
the  constitution  of  the  state  may  be  proposed  in  either  house  of  the 
legislature,  and  if  the  same  shall  be  agreed  to  upon  roll  call  by  a 
majority  of  the  members  elected  to  each  house,  it  shall  be  submitted  to 
the  electors  and  if  a majority  of  the  votes  cast  thereon  are  affirmative, 
such  amendment  shall  be  a part  of  this  constitution. 

Amendments  to  the  constitution  of  the  state  may  also  be  proposed 
by  an  initiative  petition  of  the  electors;  such  petition  shall  be  signed 
by  twenty  thousand  electors  at  large  and  shall  be  filed  with  the  secre- 
tary of  state  at  least  one  hundred  twenty  days  prior  to  the  election 
at  which  they  are  to  be  voted  upon,  and  any  amendment,  or  amend- 
ments so  proposed,  shall  be  submitted  to  the  electors  and  become  a part 
of  the  constitution,  if  a majority  of  the  votes  cast  thereon  are  affirma- 
tive. All  provisions  of  the  constitution  relating  to  the  submission  and 
adoption  of  measures  by  initiative  petition,  and  on  referendum  petition 
shall  apply  to  the  submission  and  adoption  of  amendments  to  the  con- 
stitution of  the  state. 


8.  Wisconsin  Proposed  Constitutional  Amendment  (Rejected 
1914). 

Resolved  by  the  Assembly,  the  Senate  concurring,  That  Sec- 
tion 1,  of  Article  IV  of  the  constitution, . be  amended  to  read: 

Section  1.  The  legislative  power  shall  be  vested  in  a senate  and 
assembly,  but  the  people  reserve  to  themselves  power,  as  herein  pro- 
vided, to  propose  laws  and  to  enact  or  reject  the  same  at  the  polls, 
independent  of  the  legislature,  and  to  approve  or  reject  at  the  polls 
any  law  or  any  part  of  any  law  enacted  by  the  legislature.  The  limi- 
tations expressed  in  the  constitution  on  the  power  of  the  legislature 
to  enact  laws  shall  be  deemed  limitations  on  the  power  of  the  people 
to  enact  laws. 


154 


2.  a.  Any  senator  or  member  of  the  assembly  may  introduce,  by 
presenting  to  the  chief  clerk  in  the  house  of  which  he  is  a member, 
in  open  session,  at  any  time  during  any  session  of  the  legislature,  any 
bill  or  any  amendment  to  any  such  bill;  provided,  that  the  time  for 
so  introducing  a bill  may  be  limited  by  rule  to  not  less  than  thirty 
legislative  days. 

b.  The  chief  clerk  shall  make  a record  of  such  bill  and  every 
amendment  offered  thereto  and  have  the  same  printed. 

3.  A proposed  law  shall  be  recited  in  full  in  the  petition  and  shall 
consist  of  a bill  which  has  been  introduced  in  the  legislature  during 
the  first  thirty  legislative  days  of  the  session,  as  so  introduced ; or, 
at  the  option  of  the  petitioners,  there  may  be  incorporated  in  said 
bill  any  amendment  or  amendments  introduced  in  the  legislature. 
Such  bill  and  amendments  shall  be  referred  to  by  number  in  the  peti- 
tion. Upon  petition  filed  not  later  than  four  months  before  the  next 
general  election,  such  proposed  laws  shall  be  submitted  to  a vote 
of  the  people,  and  shall  become  a law  if  it  is  approved  by  a majority 
of  the  electors  voting  thereon,  and  shall  take  effect  and  be  in  force 
from  and  after  thirty  days  after  the  election  at  which  it  is  approved. 

4.  a.  No  law  enacted  by  the  legislature,  except  an  emergency 
law,  shall  take  effect  before  ninety  days  after  its  passage  and  publica- 
tion. If  within  said  ninety  days  there  shall  have  been  filed  a petition 
to  submit  to  a vote  of  the  people  such  law  or  any  part  thereof,  such 
law  or  such  part  thereof  shall  not  take  effect  until  thirty  days  after  its 
approval  by  a majority  of  the  qualified  electors  voting  thereon. 

b.  An  emergency  law  shall  remain  in  force,  notwithstanding 
such  petition,  but  shall  stand  repealed  thirty  days  after  being  rejected 
by  a majority  of  the  qualified  electors  voting  thereon. 

c.  An  emergency  law  shall  be  any  law  declared  by  the  legisla- 
ture to  be  necessary  for  any  immediate  purpose  by  a two-thirds  vote 
of  the  members  of  each  house  voting  thereon,  entered  on  their  jour- 
nals by  the  yeas  and  nays.  No  law  making  any  appropriation  for 
maintaining  the  state  government  or  maintaining  or  aiding  any  public 
institution,  not  exceeding  the  next  previous  appropriation  for  the 
same  purpose,  shall  be  subject  to  rejection  or  repeal  under  this  sec- 
tion. The  increase  in  any  such  appropriation  shall  only  take  effect 
as  in  case  of  other  laws,  and  such  increase,  or  any  part  thereof, 
specified  in  the  petition  may  be  referred  to  a vote  of  the  people  upon 
petition. 

5.  If  measures  which  conflict  with  each  other  in  any  of  their 
essential  provisions  are  submitted  at  the  same  election,  only  the  meas- 
ure receiving  the  highest  number  of  votes  shall  stand  as  the  enact- 
ment of  the  people. 

6.  The  petition  shall  be  filed  with  the  secretary  of  state  and 
shall  be  sufficient  to  require  the  submission  by  him  of  a measure  to 
the  people  when  signed  by  eight  per  cent  of  the  qualified  electors  cal- 
culated upon  the  whole  number  of  votes  cast  for  governor  at  the  last 
preceding  election,  of  whom  not  more  than  one-half  shall  be  residents 
of  any  one  county. 


155 


7.  The  vote  upon  measures  referred  to  the  people  shall  be  taken 
at  the  next  election  occurring  not  less  than  four  months  after  the 
filing  of  the  petition,  and  held  generally  throughout  the  state  pursuant 
to  law. or  specially  called  by  the  governor. 

8.  The  legislature  shall  provide  for  furnishing  electors  the  text 
of  all  measures  to  be  voted  upon  by  the  people. 

9.  Except  that  measures  specifically  affecting  a sub-division  of 
the  state  may  be  submitted  to  the  people  of  that  subdivision,  the  legis- 
lature shall  submit  measures  to  the  people  only  as  required  by  the  con- 
stitution. 

Be  it  further  resolved  by  the  assembly,  the  senate  concurring, 
That  Article  XII  of  the  constitution  be  amended  by  creating  a new 
section  to  read: 

Sec.  3.  1.  a.  Any  senator  or  member  of  the  assembly  may  intro- 
duce, by  presenting  to  the  chief  clerk  in  the  house  in  which  he  is  a 
member,  in  open  session,  at  any  time  during  any  session  of  the 
legislature,  any  proposed  amendment  to  the  constitution  or  any  amend- 
ment to  any  such  proposed  amendment  to  the  constitution ; provided, 
that  the  time  for  so  introducing  a proposed  amendment  to  the  con- 
stitution may  be  limited  by  rule  to  not  less  than  thirty  legislative  days. 

b.  The  chief  clerk  shall  make  a record  of  such  proposed  amend- 
ments to  the  constitution  and  any  amendment  thereto  and  have  the 
same  printed. 

2.  Any  proposed  amendment  to  the  constitution  shall  be  recited 
in  full  in  the  petition  and  shall  consist  of  an  amendment  which  has 
been  introduced  in  the  legislature  during  the  first  thirty  legislative 
days,  as  so  introduced,  or,  at  the  option  of  the  petitioners,  there  may 
be  incorporated  therein  any  amendment  or  amendments  thereto  in- 
troduced in  the  legislature.  Such  amendment  to  the  constitution  and 
amendments  thereto  shall  be  referred  to  by  number  in  the  petition. 
Upon  petition  filed  not  later  than  four  months  before  the  next  gen- 
eral election,  such  proposed  amendment  shall  be  submitted  to  the 
people. 

3.  The  petition  shall  be  filed  with  the  secretary  of  state  and 
shall  be  sufficient  to  require  the  submission  by  him  of  a proposed 
amendment  to  the  constitution  to  the  people  when  signed  by  ten  per 
cent  of  the  qualified  electors,  calculated  upon  the  whole  number  of 
votes  cast  for  governor  at  the  last  preceding  election  of  whom  not 
more  than  one-half  shall  be  residents  of  any  one  county. 

4.  Any  proposed  amendment  or  amendments  to  this  constitution, 
agreed  to  by  a majority  of  the  members  elected  to  each  of  the  two 
houses  of  the  legislature,  shall  be  entered  on  their  journals  with  the 
yeas  and  nays  taken  thereon,  and  be  submitted  to  the  peope  by  the 
secretary  of  state  upon  petition  filed  with  him  signed  by  five  per  cent 
of  the  qualified  electors,  calculated  upon  the  whole  number  of  votes 
cast  for  governor  at  the  last  preceding  election  of  whom  not  more 
than  one-half  shall  be  residents  of  any  one  county. 

5.  The  legislature  shall  provide  for  furnishing  the  electors  the 
text  of  all  amendments  to  the  constitution  to  be  voted  upon  by  the 
people. 


156 


6.  If  the  people  shall  approve  and  ratify  such  amendment  or 
amendments  by  a majority  of  the  electors  voting  thereon,  such  amend- 
ment or  amendments  shall  become  a part  of  the  constitution,  from 
and  after  the  election  at  which  approved ; provided,  that  if  more  than 
one  amendment  be  submitted  they  shall  be  submitted  in  such  manner 
that  the  people  may  vote  for  or  against  such  amendments  separately. 

7.  If  proposed  amendments  to  the  constitution  which  conflict 
with  each  other  in  any  of  their  essential  provisions  are  submitted  at 
the  same  election,  only  the  proposed  amendment  receiving  the  highest 
number  of  votes  shall  become  a part  of  the  constitution. 


9.  Illinois  Senate  Joint  Resolution  No.  17  (1913)  as  amended 
and  rejected  by  the  House  of  Representatives. 

Resolved,  by  the  Senate  of  the  State  of  Illinois,  the  House  of 
Representatives  concurring  therein ; that  there  shall  be  submitted  to  the 
electors  of  this  state  for  adoption  or  rejection  at  the  next  election  of 
members  of  the  General  Assembly,  a proposition  to  amend  Article  IV 
of  the  constitution  of  this  state  by  adding  thereto  an  additional  sec- 
tion to  be  known  as  Section  35  to  read  as  follows : 

Sec.  35.  The  people  reserve  power  to  propose  and  to  enact  laws 
as  herein  provided.  Eight  per  cent  of  the  electors  of  the  state  may 
propose  an  Act  by  initiative  petition,  verified  as  to  signatures,  and 
filed  with  the  Secretary  of  State  not  less  than  60  days  prior  to  the 
date  of  convening  of  any  regular  session  of  the  General  Assembly. 

The  Secretary  of  State  shall  transmit  a certified  copy  of  the  pro- 
posed Act  to  the  House  of  Representatives  and  to  the  Senate  at  the 
convening  of  the  next  regular  session  of  the  General  Assembly,  and 
the  same  shall  be  treated  as  a bill  introduced  in  the  name  of  the 
people. 

Unless  such  proposed  Act  shall,  without  change,  become  a law 
by  regular  legislative  enactment  within  one  year  after  the  date  of 
convening  of  the  General  Assembly  the  Secretary  of  State  shall  submit 
the  same  by  its  title  to  the  electors  at  the  next  general  election. 

Provided,  that  if  a proposed  Act  shall  be  placed  upon  its  final 
passage  in  each  House,  and  shall  fail  in  each  House  to  receive  the 
affirmative  votes  of  one-fourth  of  the  members  elected,  it  shall  not 
be  so  submitted. 

If  a proposed  Act  when  submitted  to  the  electors,  shall  be  ap- 
proved by  a majority  of  the  electors  voting  on  the  proposition,  and  by 
not  less  than  33p3  per  cent  of  the  total  vote  cast  at  the  election,  it  shall 
become  a law,  and  take  effect  on  the  first  day  of  January,  next  there- 
after. 

All  laws  enacted  under  the  provisions  of  this  section  may  be  sub- 
sequently amended  or  repealed  by  the  General  Assembly,  and  they 
shall  be  subject  to  the  same  constitutional  provisions  and  limitations 
as  are  Acts  passed  by  the  General  Assembly:  Provided  such  pro- 

visions and  limitations  are  not  inconsistent  with  the  provisions  of  this 
section. 


157 


The  people  reserve  power  to  reject  laws  passed  by  the  General  As- 
sembly and  to  stay  the  time  of  their  taking  effect,  as  herein  provided. 
Five  per  cent  of  the  electors  of  the  State,  by  a referendum  petition, 
verified  as  to  signatures  and  filed  with  the  Secretary  of  State  before 
the  taking  effect  of  an  Act,  may  require  that  such  Act  shall  not  take 
effect  until  submitted  to  the  electors. 

The  Secretary  of  State  shall  submit  such  Act,  by  its  title,  to  the 
electors  at  the  next  general  election,  and  if  rejected  by  a majority  of 
the  electors  voting  on  the  proposition  it  shall  become  void,  otherwise 
it  shall  take  effect  on  the  first  day  of  January  next  thereafter. 

Acts  passed  in  case  of  emergency  by  a vote  of  two-thirds  of  all 
the  members  of  each  House,  and  Acts  making  appropriations  for  the 
ordinary  and  contingent  expenses  of  the  government  or  of  any  existing 
institutions  of  the  State,  shall  not  be  subject  to  Referendum  petition. 

All  acts  shall  take  effect  as  provided  in  Section  13  of  this  Article, 
except  that  no  Act  subject  to  a referendum  petition  shall  take  effect 
within  less  than  30  days  after  it  becomes  a law;  and,  provided,  fur- 
ther, that  one  per  cent  of  the  electors  of  the  State,  by  referendum  peti- 
tion, verified  as  to  signatures  and  filed  with  the  Secretary  of  State 
before  the  taking  effect  of  an  Act,  may  require  that  such  Act  shall 
not  take  effect  until  90  days  after  it  become  a law,  pending  the  filing 
of  a petition  supplementing  and  completing  the  said  referendum  peti- 
tion. 

The  governor  and  two  circuit  judges,  said  judges  to  be  of  dif- 
ferent political  affiliations,  shall  constitute  a board  to  pass  upon  the 
sufficiency  of  every  initiative  and  referendum  petition,  and  when  ap- 
proved by  them  its  sufficiency  shall  not  be  questioned  in  any  court. 
Said  judges  shall  be  designated  by  the  Chief  Justice  of  the  Supreme 
Court.  At  said  canvass,  those  favoring  each  petition  and  those  op- 
posing same  shall  be  entitled  to  be  heard  by  one  designated  agent  or 
attorney. 

The  total  vote  cast  at  the  last  general  election  shall  be  the  basis 
upon  which  the  required  per  cent  of  electors  herein  specified  shall  be 
estimated,  and  not  less  than  50  per  cent  of  the  signatures  required 
shall  be  electors  reading  outside  of  the  County  of  Cook. 

This  amendment  shall  be  self-executing,  but  appropriate  legisla- 
tion may  be  enacted  regulating  the  details  of  its  operation. 


10.  Combination  of  Wisconsin  and  Illinois  plans  for  laws. 

(A  similar  plan  could  be  worked  out  in  the  amending  clause  for  a 
constitutional  amendment). 

Section  1.  A petition  signed  by  qualified  electors  of  the  state 
equal  to  five  per  cent  of  the  votes  cast  for  governor  at  the  last  pre- 
ceding election  (not  more  than  one-half  of  whom  shall  be  residents  of 
any  one  county)  may  require  the  submission  to  the  people  of  any  bill 
proposed  in  either  house  of  the  general  assembly,  either  in  its  original 
form  or  with  any  amendments  proposed  in  either  house.  However,  if 


158 


such  a bill  shall  be  placed  upon  its  final  passage  in  each  house  and  fails 
in  either  house  to  receive  the  affirmative  votes  of  one-third  of  all 
members  elected  to  such  house  it  shall  not  be  so  submitted.  The  peti- 
tion shall  be  filed  with  the  Secretary  of  State  within  six 
months  after  the  adjournment  of  the  general  assembly  and 
shall  contain  the  full  text  of  the  bill  whose  submission 
is  required.  Petitions  shall  be  verified  by  affidavits  of  those 
obtaining  the  signatures.  The  governor,  attorney  general  and 
secretary  of  state  shall  constitute  a board  to  pass  upon  the 
sufficiency  of  petitions,  and  when  a petition  is  approved  by  them 
its  sufficiency  shall  not  be  questioned  in  any  court.  A finding  of  the 
board  that  a petition  is  not  sufficient  may  be  reviewed  upon  a peti- 
tion for  mandamus  filed  in  the  Supreme  Court  within  30  days. 

Sec.  2.  The  people  reserve  power  to  reject  or  to  repeal  laws 
passed  by  the  general  assembly.  Five  per  cent  of  the  electors  of  the 
state,  subject  to  the  same  conditions  as  those  provided  in  Section  1 
above,  may  require  that  any  act  passed  by  the  General  Assembly  be 
submitted  to  the  electors. 

Sec.  3.  Bills  to  be  submitted  under  the  terms  of  Section  1 and 
laws  to  be  submitted  under  the  terms  of  Section  2 of  this  article,  shall 
be  submitted  at  the  next  general  election,  unless  the  general  assembly 
by  a vote  of  a majority  of  all  the  members  elected  to  each  of  the  two 
houses  shall  order  a special  election  for  that  purpose.  If  a majority 
of  the  electors  voting  upon  a measure  submitted  under  the  terms  of 
Section  1 shall  vote  for  the  proposed  measure,  it  shall  be  adopted, 
provided  such  majority  be  not  less  than  one-third  of  the  total  number 
voting  at  the  election  if  it  is  a general  election,  or  if  it  is  a special 
election  provided  such  majority  be  not  less  than  one-third  of  the  total 
vote  cast  at  the  last  preceding  general  election. 

Any  measure  submitted  under  the  terms  of  section  2 shall  be  re- 
pealed from  and  after  the  announcement  of  the  popular  vote,  provided 
a majority  of  those  voting  thereon  vote  for  its  rejection,  if  such  major- 
ity be  not  less  than  one-third  of  the  total  number  voting  at  the  elec- 
tion if  it  is  a general  election,  or  if  it  is  a special  election  provided 
such  majority  be  not  less  than  one-third  of  the  total  vote  cast  at  the 
last  preceding  general  election. 


159 


APPENDIX  No.  3.  TEXT  OF  PUBLIC  POLICY  QUES- 
TIONS IN  ILLINOIS  ON  THE  INITIATIVE 
AND  REFERENDUM. 


1902. 

No.  1.  Shall  the  next  general  assembly  submit  to  the  people  of  the 
State  of  Illinois,  at  the  next  state  election,  a constitutional  amendment 
providing  for  the  control  of  legislation  by  the  people,  by  means  of  the 
initiative  and  referendum ; said  amendment  to  provide  for  the  initi- 
ation of  legislation  upon  a petition  of  eight  per  cent  of  the  voters  of 
the  political  divisions  affected ; and  for  the  reference  of  legislation 
upon  a petition  of  five  per  cent  of  the  voters  of  the  political  divisions 
affected,  the  action  of  the  majority  of  the  electors  voting  to  be  final; 
thus  restoring  to  the  people  the  power  they  once  held,  but  which  they 
delegated  to  the  general  assembly  by  the  constitution? 

No.  2.  Shall  the  next' general  assembly  enact  a statute  by  which 
the  voters  of  the  political  subdivisions  of  the  State  of  Illinois  may  be 
enabled  to  initiate  desired  local  legislation,  by  filing  a petition  therefor, 
signed  by  eight  per  cent  of  the  legal  voters  in  said  political  sub- 
divisions ; and  to  have  referred  to  the  voters  any  legislation  enacted  by 
the  several  local  legislative  bodies,  by  the  filing  of  a petition  therefor 
of  five  per  cent  of  the  legal  voters  of  any  such  political  subdivisions ; 
the  action  of  a majority  of  those  voting  to  decide  in  each  case? 

1904. 

No.  2.  Shall  the  State  legislature  pass  a law  enabling  the  voters 
of  any  county,  city,  village  or  township,  by  majority  vote,  to  veto  any 
undesirable  action  of  their  respective  law-making  bodies? 

1910. 

No.  1.  Shall  the  next  general  assembly  submit  to  the  voters  of  the 
State  of  Illinois  at  the  next  following  State  election  an  amendment  to 
the  State  Constitution,  providing  for  the  control  of  legislation  by  the 
people,  by  means  of  the  initiative  and  referendum;  said  amendment  to 
provide  for  the  initiation  of  legislation  upon  a petition  of  eight  per 
cent  of  the  voters,  and  for  the  reference  of  legislation  upon  a petition 
of  five  per  cent  of  the  voters,  the  action  of  the  majority  of  the  electors 
voting  to  be  final ; thus  restoring  to  the  people  the  power  they  once 
held,  but  which  they  delegated  to  the  General  Assembly  by  the  Consti- 
tution ? 

Proposed  questions  to  be  submitted  November  4,  1919. 

No.  1.  Shall  the  members  of  the  Fifth  Constitutional  Convention 
be  instructed  to  submit  a proposal  for  the  Initiative  and  Referendum ; 


160 


che  term  Initiative  as  herein  used,  meaning  the  power  to  bring  pro- 
posed laws  and  Constitutional  Amendments  to  popular  vote,  at  any 
regular  election,  by  petition  of  100,000  electors  at  large,  all  measures 
so  submitted  to  become  laws  when  approved  by  a majority  of  those 
voting  thereon ; the  term  referendum,  as  herein  used,  meaning  the 
power  to  suspend  specified  act  or  acts  of  the  legislature,  by  petition  of 
50,000  electors  at  large,  until  such  act  or  acts  shall  have  been  referred 
to  popular  vote  and  approved  by  a majority  of  those  voting  thereon; 
said  powers  of  the  Initiative  and  Referendum  also  to  be  understood 
as  being  extended  by  the  Constitution  to  the  electors  of  every  muni- 
cipality and  other  political  subdivision  or  district  of  the  State,  and  to 
apply  to  all  local,  special  and  municipal  legislation,  in  or  for  their 
respective  municipalities  and  subdivisions  or  districts? 

No.  2.  Shall  the  members  of  the  Fifth  Constitutional  Convention 
be  instructed  to  submit  the  proposal  for  the  Initiative  and  Referendum, 
as  defined  in  Question  No.  1,  for  a separate  vote,  in  such  manner  that 
said  proposal,  if  approved  by  a majority  of  those  voting  thereon,  shall 
take  effect,  either  as  part  of  a new  constitution  or  as  an  amendment  of 
Article  4,  Section  1,  of  the  present  constitution? 


APPENDIX  NO.  4.  ILLINOIS  PUBLIC  POLICY  OF  1901. 


An  act  providing  for  an  expression  of  opinion  by  electors  on 
questions  of  public  policy  at  any  general  or  special  election.  (Ap- 
proved May  11,  1901.  In  force  July  1,  1901.) 

Sec.  1.  Be  it  enacted  by  the  People  of  the  State  of  Illinois  repre- 
sented in  the  General  Assembly:  That  on  a written  petition  signed  by 
twenty-five  per  cent  of  the  registered  voters  of  any  incorporated  town, 
village,  city,  township,  county  or  school  district;  or  ten  per  cent  of  the 
registered  voters  of  the  State,  it  shall  be  the  duty  of  the  proper  elec- 
tion officers  in  each  case  to  submit  any  question  of  public  policy  so 
petitioned  for,  to  the  electors  of  the  incorporated  town,  village,  city, 
township,  county,  school  district  or  state,  as  the  case  may  be,  at  any 
general  or  special  election  named  in  the  petition;  provided,  such  peti- 
tion is  filed  with  the  proper  election  officers  in  each  case  not  less  than 
sixty  (60)  days  before  the  date  of  the  election  at  which  the  question 
or  questions  petitioned  for  are  to  be  submitted.  Not  more  than  three 
propositions  shall  be  submitted  at  the  same  election  and  such  proposi- 
tion shall  be  submitted  in  the  order  of  its  filing. 

Sec.  2.  Every  question  submitted  to  electors  shall  be  printed  in 
plain,  prominent  type  upon  a separate  ballot,  in  form  required  by 
law,  the  same  as  a constitutional  amendment  or  other  public  measure 
proposed  to  be  voted  upon  by  the  people. 


162 


APPENDIX  NO.  5.  TEXT  OF  CALIFORNIA  RECALL 

PROVISIONS. 


Article  XXIII,  Section  1.  Every  elective  public  officer  of  the  State 
of  California  may  be  removed  from  office  at  any  time  by  the  electors 
entitled  to  vote  for  a successor  of  such  incumbent,  through  the  pro- 
cedure and  in  the  manner  herein  provided  for,  which  procedure  shall 
be  known  as  the  recall,  and  is  in  addition  to  any  other  method  of 
removal  provided  by  law. 

The  procedure  hereunder  to  effect  the  removal  of  an  incumbent 
of  an  elective  public  office  shall  be  as  follows : A petition  signed  by 

electors  entitled  to  vote  for  a successor  of  the  incumbent  sought  to  be 
removed,  equal  in  number  to  at  least  twelve  per  cent  of  the  entire  vote 
cast  at  the  last  preceding  election  for  all  candidates  for  the  office, 
which  the  incumbent  sought  to  be  removed  occupies  (provided  that  if 
the  officer  sought  to  be  removed  is  a state  officer  who  is  elected  in  any 
political  subdivision  of  the  State,  said  petition  shall  be  signed  by 
electors  entitled  to  vote  for  a successor  to  the  incumbent  sought  to  be 
removed,  equal  in  number  to  at  least  twenty  per  cent  of  the  entire 
vote  cast  at  the  last  preceding  election  for  all  candidates  for  the  office 
which  the  incumbent  sought  to  be  removed  occupies)  demanding  an 
election  of  a successor  to  the  officer  named  in  said  petition,  shall  be 
addressed  to  the  Secretary  of  State  and  filed  with  the  clerk,  or 
registrar  of  voters,  of  the  county  or  city  and  county  in  which  the 
petition  was  circulated ; provided,  that  if  the  officer  sought  to  be  re- 
moved was  elected  in  the  State  at  large  such  petition  shall  be  circu- 
lated in  not  less  than  five  counties  of  the  State,  and  shall  be  signed  in 
each  of  such  counties  by  electors  equal  in  number  to  not  less  than  one 
per  cent  of  the  entire  vote  cast,  in  each  of  said  counties,  at  said  elec- 
tion, as  above  estimated.  Such  petition  shall  contain  a general  state- 
ment of  the  grounds  on  which  the  removal  is  sought,  which  statement 
is  intended  solely  for  the  information  of  the  electors,  and  the  suffi- 
ciency of  which  shall  not  be  open  to  review.  When  such  petition  is 
certified  as  is  herein  provided  to  the  Secretary  of  State,  he  shall  forth- 
with submit  the  said  petition,  together  with  a certificate  of  its  suffi- 
ciency, to  the  Governor,  who  shall  thereupon  order  and  fix  a date  for 
holding  the  election,  not  less  than  sixty  days  nor  more  than  eighty 
days  from  the  date  of  such  certificate  of  the  Secretary  of  State. 

The  Governor  shall  make  or  cause  to  be  made  publication  of  no- 
tice for  the  holding  of  such  election,  and  officers  charged  by  law  with 
duties  concerning  elections  shall  make  all  arrangements  for  such  elec- 
tion and  the  same  shall  be  conducted,  returned,  and  the  result  thereof 
declared,  in  all  respects  as  are  other  state  elections.  On  the  official 


163 


ballot  at  such  election  shall  be  printed,  in  not  more  than  two  hundred 
words,  the  reasons  set  forth  in  the  petition  for  demanding  his  recall. 
And  in  not  more  than  three  hundred  words  there  shall  also  be  printed, 
if  desired  by  him,  the  officers’  justification  of  his  course  in  office.  Pro- 
ceedings for  the  recall  of  any  officer  shall  be  deemed  to  be  pending 
from  the  date  of  the  filing  with  any  county,  or  city  and  county  clerk, 
or  registrar  of  voters,  of  any  recall  petition  against  such  officer ; and 
if  such  officer  shall  resign  at  any  time  subsequent  to  the  filing  thereof, 
the  recall  election  shall  be  held  notwithstanding  such  resignation,  and 
the  vacancy  caused  by  such  resignation,  or  from  any  other  cause,  shall 
be  filled  as  provided  by  law,  but  the  person  appointed  to  fill  such  va- 
cancy shall  hold  his  office  only  until  the  person  elected  at  the  said 
recall  election  shall  qualify. 

Any  person  may  be  nominated  for  the  office  which  is  to  be  filled 
at  any  recall  election  by  a petition  signed  by  electors,  qualified  to  vote 
at  such  recall  election,  equal  in  number  to  at  least  one  per  cent  of  the 
total  number  of  votes  cast  at  the  last  preceding  election  for  all  candi- 
dates for  the  office  which  the  incumbent  sought  to  be  removed  oc- 
cupies. Each  such  nominating  petition  shall  be  filed  with  the  Secretary 
of  State  not  less  than  twenty-five  days  before  such  recall  election. 

There  shall  be  printed  on  the  recall  ballot,  as  to  every  officer 
whose  recall  is  to  be  voted  on  thereat,  the  following  question : “Shall 
(name  of  person  against  whom  the  recall  petition  is  filed)  be  recalled 
from  the  office  of  (title  of  office)  ?”,  following  which  question  shall  be 
the  words  “Yes”  and  “No”  on  separate  lines,  with  a blank  space  at  the 
right  of  each,  in  which  the  voter  shall  indicate,  by  stamping  a cross 
(x),  his  vote  for  or  against  such  recall.  On  such  ballots,  under  each 
such  question,  there  shall  also  be  printed  the  names  of  those  persons 
who  have  been  nominated  as  candidates  to  succeed  the  person  recalled, 
in  case  he  shall  be  removed  from  office  by  said  recall  election ; but  no 
vote  cast  shall  be  counted  for  any  candidate  for  said  office  unless  the 
voter  also  voted  on  said  question  of  the  recall  of  the  person  sought 
to  be  recalled  from  said  office.  The  name  of  the  person  against 
whom  the  petition  is  filed  shall  not  appear  on  the  ballot  as  a candidate 
for  the  office.  If  a majority  of  those  voting  on  said  question  of  the 
recall  of  any  incumbent  from  office  shall  vote  “No,”  said  incumbent 
shall  continue  in  said  office.  If  a majority  shall  vote  “Yes”,  said  in- 
cumbent shall  thereupon  be  deemed  removed  from  such  office  upon  the 
qualification  of  his  successor.  The  canvassers  shall  canvass  all  votes 
for  candidates  for  said  office  and  declare  the  result  in  like  manner  as 
in  a regular  election.  If  the  vote  at  any  such  recall  election  shall 
recall  the  officer,  then  the  candidate  who  has  received  the  highest  num- 
ber of  votes  for  the  office  shall  be  thereby  declared  elected  for  the  re- 
mainder of  the  term.  In  case  the  person  who  received  the  highest 
number  of  votes  shall  fail  to  qualify  within  ten  days  after  receiving 
the  certificate  of  election,  the  office  shall  be  deemed  vacant  and  shall 
be  filled  according  to  law. 

Any  recall  petition  may  be  presented  in  sections,  but  each  section 
shall  contain  a full  and  accurate  copy  of  the  title  and  text  of  the 
petition.  Each  signer  shall  add  to  his  signature  his  place  of  residence, 


164 


giving  the  street  and  number,  if  such  exist.  His  election  precinct  shall 
also  appear  on  the  paper  after  his  name.  The  number  of  signatures 
appended  to  each  section  shall  be  at  the  pleasure  of  the  person  solicit- 
ing signatures  to  the  same.  Any  qualified  elector  of  the  State  shall  be 
competent  to  solicit  such  signatures  within  the  county,  or  city  and 
county,  of  which  he  is  an  elector.  Each  section  of  the  petition  shall 
bear  the  name  of  the  county,  or  city  and  county  in  which  it  is  circu- 
lated, and  only  qualified  electors  of  such  county  or  city  and  county 
shall  be  competent  to  sign  such  section.  Each  section  shall  have  at- 
tached thereto  the  affidavit  of  the  person  soliciting  signatures  to  the 
same  stating  his  qualifications  and  that  all  the  signatures  to  the  at- 
tached section  were  made  in  his  presence  and  that  to  the  best  of  his 
knowledge  and  belief  each  signature  to  the  section  is  the  genuine  signa- 
ture of  the  person  whose  name  it  purports  to  be ; and  no  other  affidavit 
thereto  shall  be  required.  The  affidavit  of  any  person  soliciting  signa- 
tures hereunder  shall  be  verified  free  of  charge  by  any  officer  author- 
ized to  administer  an  oath.  Such  petition  so  verified  shall  be  prima 
facie  evidence  that  the  signatures  thereto  appended  are  genuine  and 
that  the  persons  signing  the  same  are  qualified  electors.  Unless  and 
until  it  is  otherwise  proven  upon  official  investigation,  it  shall  be  pre- 
sumed that  the  petition  presented  contains  the  signatures  of  the  requis- 
ite number  of  electors.  Each  section  of  the  petition  shall  be  filed  with 
the  clerk,  or  registrar  of  voters,  of  the  county  or  city  and  county  in 
which  it  was  circulated ; but  all  such  sections  circulated  in  any  county 
or  city  and  county  shall  be  filed  at  the  same  time.  Within  twenty  days 
after  the  date  of  filing  such  petition,  the  clerk,  or  registrar  of  voters, 
shall  finally  determine  from  the  records  of  registration  what  number 
of  qualified  electors  have  signed  the  same ; and,  if  necessary,  the 
board  of  supervisors  shall  allow  such  clerk  or  registrar  additional 
assistants  for  the  purpose  of  examining  such  petition  and  provide  for 
their  compensation.  The  said  clerk  or  registrar,  upon  the  completion 
of  such  examination,  shall  forthwith  attach  to  such  petition  his  certi- 
ficate, properly  dated,  showing  the  result  of  such  examination,  and 
submit  said  petition,  except  as  to  the  signatures  appended  thereto,  to 
the  Secretary  of  State  and  file  a copy  of  said  certificate  in  his  office. 
Within  forty  days  from  the  transmission  of  the  said  petition  and 
certificate  by  the  clerk  or  registrar  of  voters  to  the  Secretary  of  State, 
a supplemental  petition,  identical  with  the  original  as  to  the  body  of 
the  petition  but  containing  supplemental  names,  may  be  filed  with  the 
clerk  or  registrar  of  voters,  as  aforesaid.  The  clerk  or  registrar  of 
voters  shall  within  ten  days  after  the  filing  of  such  supplemental  peti- 
tion make  like  examination  thereof  as  of  the  original  petition,  and 
upon  the  conclusion  of  such  examination  shall  forthwith  attach  to 
such  petition  his  certificate,  properly  dated,  showing  the  result  of  such 
examination,  and  shall  forthwith  transmit  such  supplemental  petition, 
except  as  to  the  signatures  thereon,  together  with  his  said  certificate, 
to  the  Secretary  of  State. 

When  the  Secretary  of  State  shall  have  received  from  one  or 
more  county  clerks,  or  registrars  of  voters,  a petition  certified  as  here- 
in provided  to  have  been  signed  by  the  requisite  number  of  qualified 


165 


electors,  he  shall  forthwith  transmit  to  the  county  clerk  or  registrar 
of  voters  of  every  county  or  city  and  county  in  the  State  a certificate 
showing  such  fact;  and  such  clerk  or  registrar  of  voters  shall  there- 
upon file  said  certificate  for  record  in  his  office. 

A petition  shall  be  deemed  to  be  filed  with  the  Secretary  of  State 
upon  the  date  of  the  receipt  by  him  of  a certificate  or  certificates 
showing  the  said  petition  to  be  signed  by  the  requisite  number  of 
electors  of  the  State. 

No  recall  petition  shall  be  circulated  or  filed  against  any  officer 
until  he  has  actually  held  his  office  for  at  least  six  months;  save  and 
except  it  may  be  filed  against  any  member  of  the  State  Legislature  at 
any  time  after  five  days  from  the  convening  and  organizing  of  the 
Legislature  after  his  election. 

If  at  any  recall  election  the  incumbent  whose  removal  is  sought 
is  not  recalled,  he  shall  be  repaid  from  the  State  treasury  any  amount 
legally  expended  by  him  as  expenses  of  such  election,  and  the  Legis- 
lature shall  provide  appropriation  for  such  purpose,  and  no  proceed- 
ings for  another  recall  election  of  said  incumbent  shall  be  initiated 
within  six  months  after  such  election. 

If  the  Governor  is  sought  to  be  removed  under  the  provisions 
of  this  article,  the  duties  herein  imposed  upon  him  shall  be  performed 
by  the  Lieutenant-Governor;  and  if  the  Secretary  of  State  is  sought 
to  be  removed,  the  duties  herein  imposed  upon  him  shall  be  performed 
by  the  State  Controller ; and  the  duties  herein  imposed  upon  the  clerk 
or  registrar  of  voters,  shall  be  performed  by  such  registrar  of  voters 
in  all  cases  where  the  office  of  registrar  of  voters  exists. 

The  recall  shall  also  be  exercised  by  the  electors  of  each  county, 
city  and  county,  city  and  town  of  the  State,  with  reference  to  the 
elective  officers  thereof,  under  such  procedure  as  shall  be  provided 
by  law. 

Until  otherwise  provided  by  law,  the  legislative  body  of  any  such 
county,  city  and  county,  city  or  town  may  provide  for  the  manner  of 
exercising  such  recall  powers  in  such  counties,  cities  and  counties, 
cities  and  towns,  but  shall  not  require  any  such  recall  petition  to  be 
signed  by  electors  more  in  number  than  twenty-five  per  cent  of  the 
entire  vote  cast  at  the  last  preceding  election  for  all  candidates  for 
the  office  which  the  incumbent  sought  to  be  removed  occupies. 
Nothing  herein  contained  shall  be  construed  as  affecting  or  limiting 
the  present  or  future  powers  of  cities  or  counties  or  cities  and  coun- 
ties having  charters  adopted  under  the  authority  given  by  the  Consti- 
tution. 

In  the  submission  to  the  electors  of  any  petition  proposed  under  this 
article  all  officers  shall  be  guided  by  the  general  laws  of  the  State,  ex- 
cept as  otherwise  herein  provided. 

This  article  is  self-executing,  but  legislation  may  be  enacted  to 
facilitate  its  operation,  but  in  no  way  limiting  or  restricting  the  pro- 
visions of  this  article  or  the  powers  herein  reserved. 


CONSTITUTIONAL  CONVENTION 


BULLETIN  No.  3 


The  Amending  Article  of 
the  Constitution 


Compiled  and  Published  by  the 

LEGISLATIVE  REFERENCE  BUREAU 

Springfield,  Illinois 


[Printed  by  authority  of  the  State  of  Illinois.] 


LEGISLATIVE  REFERENCE  BUREAU. 


Governor  Frank  O.  Lowden,  Chairman. 
Senator  Edward  C.  Curtis,  Grant  Park. 
Senator  Richard  J.  Barr,  Joliet. 
Representative  Edward  J.  Smejkal,  Chicago. 
Representative  William  P.  Holaday,  Danville. 


E.  J.  Verlie,  Secretary. 

W.  F.  Dodd,  in  charge  collection  of  data  for 
constitu  tional  conven  tion . 

v. 


TABLE  OF  CONTENTS 


il 


Page 


I.  Summary  171 

II.  Illinois  Experience 173 

Historical  account 173 

Amending  clause  of  the  constitution  of  1870 174 

Limitations  upon  the  proposal  of  amendments ,175 

Legislative  proposal  of  amendments 176 


Popular  vote  required  for  the  adoption  of  amendments.  .177 
Constitutional  convention  under  the  constitution  of  1870.179- 
Relation  between  two  methods  of  constitutional  alteration  179 

Use  of  the  amending  clause  in  Illinois  since  1870 180 

Suggested  changes  in  details  of  present  amending  clause.  181 


III.  Amending  Methods  in  Other  States 183 

Limitations  upon  submission  of  constitutional  amendments . 185 
Legislative  action  in  submitting  constitutional  amendments.  186 

Proposal  by  popular  initiative 187 

Popular  vote  required  for  the  adoption  of  amendments. . . .188 

IV  Revision  of  Constitution  Through  Convention 190; 

V.  Analysis  and  Conclusions 193 

Use  of  the  initiative 195 

Relation  between  the  constitution  and  statutes 195 

Conclusion  197 

Appendix. 

1.  Illinois  Constitution  of  1870,  Art.  XIV 1991 

2.  Chicago  Bar  Association  Amendment 206 

3.  Public  Policy  Questions,  1919 200’ 

4.  Proposal  of  Chicago  Woman’s  Club 200' 

5.  Combination  of  initiative  and  legislative  proposal  of 

amendments 20$ 

6.  Constitution  of  Michigan,  Art.  XVII 204 


I.  SUMMARY. 


Constitutional  change  in  Illinois  is  extremely  difficult  and  in  this 
respect  Illinois  ranks  with  a small  group  of  states  which  make  con- 
stitutional amendments  difficult  if  not  impossible. 

As  suggested  in  this  pamphlet,  it  is  desirable  to  keep  temporary 
details  out  of  the  constitution.  However,  the  state  constitutional  devel- 
opment in  this  country  since  1850  has  been  toward  placing  a greater 
amount  of  detail  in  the  constitutional  text.  If  details  are  to  be  placed 
in  the  constitutional  text,  it  is  of  course  necessary  that  some  provision 
be  made  for  easy  alteration  of  such  detail  when  it  has  been  outgrown  or 
when  change  becomes  necessary.  Illinois  constitutions  of  1848  and 
1870  have  contained  a large  amount  of  detail  but  have  not  provided  a 
ready  means  for  prompt  alteration  of  this  detail. 

In  Illinois,  as  in  all  of  the  other  states  except  New  Hampshire 
and  probably  Rhode  Island,  two  methods  of  constitutional  alteration 
exist:  (a)  alteration  through  the  assembling  of  a constitutional  con- 

vention, and  (b)  alteration  through  specific  proposal  by  the  repre- 
sentative legislature  or  by  the  popular  initiative.  In  planning  any 
amending  clause  for  Illinois  care  should  be  taken  that  the  two  meth- 
ods of  constitutional  alteration  are  considered  together. 

A constitutional  convention  is  a cumbersome  piece  of  govern- 
mental machinery  intended  for  use  only  in  case  a complete  revision 
of  the  constitution  is  desired  or  in  case  matters  of  fundamental  im- 
portance are  to  be  dealt  with.  It  is  for  this  reason  that  the  states 
have  provided  other  methods  of  constitutional  change  for  matters  of 
less  fundamental  importance.  New  Hampshire,  however,  has  ad- 
hered to  the  plan  of  constitutional  conventions  for  the  proposal  of  all 
changes,  and  provides  for  a popular  vote  upon  the  holding  of  such  a 
convention  at  the  end  of  each  seven  year  period.  Constitutional  con- 
ventions have  been  assembled  in  New  Hampshire  in  1902,  1912,  and 
1918-19.  The  provisions  for  constitutional  amendment  through  legis- 
lative proposal  in  the  Illinois  constitution  of  1848  were  SO'  cumber- 
some that  a constitutional  convention  was  substantially  the  only 
method  for  changing  a mass  of  temporary  detail  which  almost  im- 
mediately required  change.  It  was  for  this  reason  that  a constitu- 
tional convention  was  assembled  in  1862,  and  when  the  work  of  this 
convention  was  rejected  another  convention  became  necessary  in 
1869-70.  It  should  not  be  necessary  to  assemble  constitutional  con- 
ventions except  at  long  intervals,  but  the  pressure  for  the  assembling 
of  such  a convention  will  necessarily  be  great  if  the  method  provided 
for  specific  amendment  is  not  relatively  simple. 

The  Illinois  constitution  of  1870  makes  the  specific  amendment 
of  the  present  constitution  difficult.  This  difficulty  is  occasioned  not 
so  much  by  any  one  thing  as  by  the  fact  that  several  provisions  of  the 
present  amending  clause  unite  to  present  obstacles  to  change.  The 
present  constitution  provides  that  (a)  the  general  assembly  shall  have 


172 


no  power  to  propose  amendments  to  more  than  one  article  at  the  same 
session  nor  to  the  same  article  oftener  than  once  in  four  years,  (b) 
that  two-thirds  of  all  members  elected  to  each  of  the  two  houses  must 
concur  in  order  to  propose  a constitutional  amendment,  (c)  that  pro- 
posed amendments  shall  be  approved  by  a majority  of  the  electors 
voting  at  a general  election. 

A plan  which  would  probably  meet  all  requirements  would  be  that 
of  making  the  assembling  of  a constitutional  convention  relatively 
difficult,  but  of  making  the  proposal  of  specific  amendments  relatively 
easy. 

In  a pamphlet  on  the  initiative  and  referendum  there  is  a rather  full 
discussion  of  the  initiative  as  applied  to  constitutional  amendments. 
Some  matter  relating  to  the  initiative  as  applicable  to  constitutional 
amendments  appears  also  in  this  pamphlet.  If  the  initiative  for  consti- 
tutional amendments  is  to  be  adopted,  the  easier  process  of  specific 
amendment  will  of  course  include  two  methods  of  proposing  consti- 
tional  changes. 

In  the  preparation  of  this  pamphlet  a table  of  constitutional 
changes  proposed  and  adopted  in  all  of  the  states  since  1900  has  been 
prepared.  Some  of  the  statements  in  this  pamphlet  are  based  upon 
this  material.  It  has  seemed  unnecessary  to  publish  these  tables,  but 
they  will  be  available  for  any  one  desiring  to  analyze  the  operation  of 
amending  methods  in  this  and  other  states. 

In  Bulletin  No.  1 an  extended  review  will  be  found  of  constitu- 
tional changes  which  have  taken  place  since  1900.  Seven  new  con- 
stitutions have  been  adopted  since  1900:  Alabama  (1901),  Virginia 

(1902),  Oklahoma  (1907),  Michigan  (1908),  Arizona  (1911),  New 
Mexico  (1911)  and  Louisiana  (1913).  Proposed  new  constitutions 
have  been  rejected  in  Connecticut  (1902,  1907)  New  York  (1915) 
and  Arkansas  (1918).  Constitutional  conventions  in  Massachusetts 
(1917-19),  New  Hampshire  (1902,  1912)  and  Ohio  (1912)  submitted 
proposals  of  amendment  rather  than  complete  new  constitutions. 

Since  1900,  more  than  fifteen  hundred  amendments  have  been 
proposed  in  the  forty-eight  states,  of  which  about  nine  hundred  have 
been  adopted.  Of  this  number,  one  hundred  and  fifty  were  submitted 
in  California,  one  hundred  and  thirty-four  in  Louisiana  and  eighty- 
eight  in  Oregon. 

California  has  a detailed  constitution  (which  is  steadily  becoming 
more  detailed),  and  has  a long  established  practice  of  adopting  fre- 
quent constitutional  changes.  Eighty-four  of  the  one  hundred  and 
fifty  amendments  in  this  state  were  submitted  before  the  initiative 
was  available  for  this  purpose,  and  of  the  sixty-six  submitted  in  the 
period  1912-1918,  fifty-one  were  proposed  by  legislative  action,  so 
that  the  popular  initiative  can  hardly  be  credited  with  the  frequent 
proposal  of  amendments. 

Louisiana,  which  does  not  have  the  initiative  but  has  an  elabo- 
rate and  complex  constitution,  has  had  since  1900  not  only  one  hund- 
red and  thirty-four  proposed  amendments  but  also  a constitutional 
convention.  Of  the  eighty-eight  proposals  submitted  in  Oregon  since 
1900,  forty-three  were  proposed  by  initiative  petition. 


173 


II.  ILLINOIS  EXPERIENCE. 


Historical  Account:  The  Illinois  constitution  of  1818  provided 
for  the  alteration  of  that  instrument  only  through  the  medium  of  a 
constitutional  convention.  Practically  all  the  states  came,  after  ex- 
perience, to  a realization  that  specific  constitutional  amend- 
ments might  often  be  desirable,  and  the  assembling  of  a 
convention  for  the  purpose  of  proposing  one  or  two  slight 
amendments  is  both  cumbersome  and  expensive  The  constitu- 

tion of  1848  was,  therefore,  in  line  with  the  general  development  in 
other  states  when  it  provided  for  the  proposal  of  amendments  by 
legislative  action  as  well  as  through  the  assembling  of  a constitutional 
convention. 

The  proposed  constitution  rejected  in  1862  made  somewhat  fuller 
provisions  regarding  a constitutional  convention  than  did  the  constitu- 
tions of  1818  and  1848,  specifically  requiring  that  alterations  made  by 
a convention  should  be  submitted  to  the  people  for  adoption  or  re- 
jection. The  proposed  constitution  of  1862  left  unaltered  the  pro- 
visions of  the  constitution  of  1848  for  legislative  proposal  of  amend- 
ments, with  the  exception  that  the  general  assembly  was  to  have 
power  to  propose  amendments  to  no  more  than  two  articles  of  the 
constitution  at  the  same  time. 

In  the  convention  of  1869-70,  difficulty  presented  itself  with  re- 
spect to  the  oath  to  be  taken  by  delegates  and  also  with  respect  to  the 
filling  of  vacancies  in  the  convention.  To  meet  these  difficulties  for 
the  future  and  to  make  the  convention  clause  more  specific,  detailed 
provisions  were  adopted  as  to  the  composition  and  organization  of  a 
constitutional  convention,  and  it  was  also  required  that  the  work  of'  a 
convention  be  submitted  to  the  electors  for  ratification. 

With  respect  to  the  power  of  the  general  assembly  to  propose 
amendments,  important  changes  were  made.  The  constitution  of 
1848  required  the  action  of  two  successive  sessions  of  the  general 
assembly  for  the  proposal  of  constitutional  amendments,  and  the  con- 
stitution of  1870  simplified  the  procedure  by  providing  for  proposal  as 
a result  of  one  action  of  the  general  assembly. 

In  two  other  respects,  however,  the  amending  process  in  the  con- 
stitution of  1870  was  made  more  difficult  than  that  of  the  constitution 
of  1848.  The  constitution  of  1848  provided  that  “the  general  assem- 
bly shall  not  have  power  to  propose  an  amendment  or  amendments  to 
more  than  one  article  at  the  same  session”.  To  this  provision  the  con- 
stitution of  1870  added  the  provision  that  amendments  should  not  be 
proposed  to  the  same  article  oftener  than  once  in  four  years. 

The  constitution  of  1848  provided  that  an  amendment  proposed 
by  the  general  assembly  should  be  submitted  at  the  next  general  elec- 


174 


tion,  and  should  be  adopted  if  “a  majority  of  all  the  electors  voting  at 
such  election  for  members  of  the  house  of  reperesentatives  shall  vote 
for  such  amendment”.  The  constitution  of  1870  provides  that  sub- 
mission shall  be  at  the  next  election  of  members  of  the  general  as- 
sembly, and  that  the  amendment  shall  be  adopted  if  approved  by  “a 
majority  of  the  electors  voting  at  said  election”. 

Although  in  certain  respects  an  amendment  of  the  constitution  of 
1870  was  made  more  difficult  than  that  of  previous  constitutions,  it  is 
hardly  accurate  to  say  that  the  present  constitution  is  more  difficult  to 
amend  than  previous  constitutions.  The  difficult  and  cumbersome 
method  of  proposing  amendments  by  the  legislature  under  the  consti- 
tution of  1848  prevented  constitutional  change,  and  only  one  amend- 
ment was  proposed  to  the  people  between  1848  and  1870.  In  spite  of 
the  added  difficulties  imposed  by  the  constitutional  convention  of 
1869-70,  it  may  be  said  that  each  new  constitution  in  Illinois  has  been 
easier  to  amend  than  the  preceding  constitution. 

One  point,  however,  was  not  sufficiently  considered  by  the  fra- 
mers of  either  the  constitution  of  1848  or  of  the  constitution  of  1870. 
The  constitution  of  1818  contained  little  detail,  and  on  that  account 
would  not  have  required  as  frequent  change  as  the  later  constitutions. 
The  framers  of  the  later  constitutions  however  did  not  realize  that 
they  were  placing  in  the  constitutions  a mass  of  detail,  which  must  be 
subject  to  relatively  easy  change,  and  did  not  adjust  their  amending 
methods  to  this  fact.  If  a constitution  is  to  deal  with  nothing  but 
matters  of  fundamental  and  permanent  importance,  it  may  properly 
be  difficult  to  alter,  although  one  generation  can  hardly  determine 
finally  what  are  to  be  matters  of  fundamental  and  permanent  import- 
ance for  the  next  generation.  If  numerous  details  are  to  be  placed 
in  a constitution,  some  provision  must  be  made  for  the  ready  altera- 
tion of  such  details  or  the  constitution  becomes  a permanent  bar  to 
progress.  The  framers  of  the  constitutions  of  1848  and  1870  placed 
a large  amount  of  detail  in  these  constitutions,  and  at  the  same  time 
adopted  amending  processes  for  these  constitutions  upon  the  assump- 
tion that  the  constitutions  contained  only  matters  fundamental  in 
character  and  unchanging  in  principle.  These  two  attitudes  were 
necessarily  conflicting  and  produced  serious  difficulties. 


Amending  clause  of  the  constitution  of  1870:  The  amending 

clause  of  the  constitution  of  1870  is,  as  has  been  suggested  above,  sim- 
pler than  was  the  amending  clause  of  1848.  However,  into  the  clause 
of  1870  were  inserted  two  provisions  which  have  made  difficulty,  al- 
though as  to  one  of  them  at  least  this  difficulty  probably  could  not 
have  been  foreseen  by  the  members  of  the  convention  of  1869-70. 

The  points  of  difficulty  in  the  constitution  of  1870  are:  (a)  The 

limitation  against  the  proposal  of  amendments  to  more  than  one  article 
of  the  constitution  at  the  same  session,  or  to  the  same  article  oftener 
than  once  in  four  years,  (b)  The  requirement  of  a two-thirds  vote  of 
all  members  elected  to  each  of  the  two  houses  in  order  to  propose  a 


175 


constitutional  amendment,  and  (c)  The  provision  that  proposed 
amendments  shall  be  approved  by  a majority  of  the  electors  voting  at 
the  general  election. 


Limitations  upon  the  proposal  of  amendments : The  provision 
against  the  proposal  of  amendments  to  more  than  one  article  of  the 
constitution  at  the  same  session  first  appeared  in  the  constitution  of 
1848.  With  respect  to  the  operation  of  this  limitation  in  the  constitu- 
tion of  1848  Mr.  Dement  said  in  the  convention  of  1870 : “Such  were 
supposed  to  be  the  defects  of  the  present  constitution  in  several  of  the 
articles,  that  the  persons  whose  attention  was  directed  to  abuses  in  the 
judiciary  department  of  the  state  would  not  propose  an  amendment 
unless  to  that  article.  Others  who  viewed  the  objections  to  the  execu- 
tive or  legislative  articles  as  more  serious,  insisted  that  those  were  the 
articles  that  should  be  first  amended — or  one  of  those  articles ; and 
the  consequence  was  the  general  assembly  could  not  unite  a majority 
of  two-thirds  in  favor  of  any  one  amendment.1  This  situation 
has  continued  in  the  constitution  of  1870.  More  than  one  amend- 
ment may  be  proposed  at  the  same  session  if  several  proposed 
amendments  relate  to  the  same  article  of  the  constitution.  So, 
for  example,  proposals  to  abolish  cumulative  voting  and  establish  the 
initiative  and  referendum  in  legislation  may  under  the  present  con- 
stitution be  submitted  at  the  same  session  of  the  gen- 
eral assembly.  But  if  only  one  were  submitted,  the  other  could  not 
be  proposed  within  the  succeeding  four  years.  However,  where  several 
amendments  to  the  constitution  have  been  urged  at  the  same  time, 
they  have  usually  related  to  different  articles.  In  as  much  as  proposed 
amendments  to  different  articles  could  not  be  submitted  at  the  same 
session,  deadlocks  naturally  resulted  among  the  groups  favorable  to 
the  amendment  of  different  articles,  just  as  in  the  period  before  1870. 
It  was  suggested  in  1870  that  if  more  than  one  amendment  could  be 
proposed  at  the  same  time,  there  would  be  “log  rolling”  among  the 
advocates  of  various  amendments.  An  equally  serious  danger  has  re- 
sulted in  the  present  constitution  in  that  deadlocks  may  prevent  any 
proposed  change,  and  in  that  the  opponents  of  a proposed  amendment 
may  hide  their  opposition  by  advocating  some  other  proposal  at  the 
same  time. 

Aside  from  the  possibility  of  deadlock  presented  by  the  constitu- 
tional provision  here  under  discussion,  another  difficulty  presents  itself 
in  that  a matter  sought  to  be  handled  by  amendment  may  be  dealt  with 
by  two  separate  articles  of  the  constitution.  For  example,  any  initi- 
ative and  referendum  proposal  both  for  legislation  and  for  constitu- 
tional amendments  would  have  had  to  alter  two  articles  of  the  present 
constitution.  In  this  as  in  many  other  cases,  but  one  subject  is  in- 
volved, but  to  handle  that  subject  as  a unit  is  impossible  under  the 
present  rule. 

'Debates  and  Proceedings,  Illinois  Constitutional  Convention,  1869-70,  II, 
1315. 


176 


Each  article  of  the  constitution  is  bound  up  more  or  less  closely 
with  every  other  article,  and  in  amending  one,  some  change  is  apt  to  be 
worked  in  others.  With  reference  to  this  matter,  however,. the  Su- 
preme Court  of  Illinois  has  taken  a liberal  and  common-sense  view  and 
has  said  that  the  restriction  in  the  constitution  “was  not  intended  to 
prevent  implied  amendments  or  changes  which  were  necessarily 
worked  in  other  articles  of  the  constitution  by  the  express  amendment 
of  a particular  article  of  the  constitution.  Any  other  view  would  be  so 
narrow  as  to  prohibit  the  general  assembly  in  many,  if  not  in  all  cases, 
from  proposing  amendments  to  a particular  article  of  the  constitution, 
as  the  several  articles  of  the  constitution  are  so  far  connected  and  de- 
pendent upon  each  other  that  a change  in  any  article  generally,  if  not 
universally,  has  the  effect  to  produce  changes  of  more  or  less  im- 
portance in  one  or  more  of  the  articles  of  the  constitution  other  than 
that  which  is  expressly  amended.”2  But  this  interpretation  gives  no 
aid  with  respect  to  a proposal  which  may  require  changes  directly  or 
expressly  in  more  than  one  article  of  the  constitution. 

The  limitation  that  amendments  may  not  be  proposed  to  the  same 
article  oftener  than  once  in  four  years  has  not  made  any  apparent 
difficulty  since  it  was  inserted  in  the  constitution  of  Illinois.  This  has 
been  primarily  because  the  “one  article  at  a time”  clause  has  dis- 
couraged amendments  and  prevented  the  raising  of  a situation  in 
which  the  four-year  limitation  might  operate.  Had  the  other  limita- 
tion not  been  present,  it  is  possible  that  the  four-year  limitation  would 
have  proven  an  obstacle  to  amendments.  Where  an  article  of  the  con- 
stitution contains  as  many  and  as  distinct  provisions  as  does  the  legis- 
lative article,  there  seems  to  be  no  logical  reason  for  the  four-year 
limitation.  This  is  especially  true  in  view  of  the  fact  that  two  or  more 
amendments  to  the  same  article  may  be  proposed  and  submitted  at  the 
same  time  under  the  present  constitutional  provisions. 


Legislative  proposal  of  amendments : The  constitution  of  1848 
required  the  action  of  two  successive  sessions  of  the  general  assembly, 
this  action  to  be  taken  by  two-thirds  of  all  the  members  elected  to  each 
of  the  two  houses  in  the  first  session,  and  by  a majority  of  all  the 
members  elected  to  each  house  in  the  second  session.  The  constitution 
of  1870  simplified  this  machinery  very  materially  by  providing  for 
submission  to  the  people  after  an  affirmative  vote  of  two-thirds  of  all 
the  members  elected  to  each  of  the  two  houses.  The  requirement  of 
action  by  two  successive  legislatures  had  proven  unnecessary,  not  only 
in  Illinois  but  in  other  states,  and  the  tendency  in  other  states  has  been 
to  disxeqrd  such  a requirement. 

The  two-thirds  vote  required  by  the  present  constitutional  pro- 
vision woitld  probably  not  have  proven  essentially  difficult  had  other 
limitations  upon  the  amending  process  not  existed.  In  the  states  pro- 
viding for  the  proposal  of  constitutional  amendments  by  one  legislature 
only,  the  more  common  requirement  is  that  the  proposal  be  one  by  two- 


2 City  of  Chicago  v.  Reeves,  220  111.  284  (1906). 


177 


thirds  of  the  members  elected  to  each  of  the  two  houses,  although 
some  states  require  a three-fifths  vote,  and  recently  there  has  been  a 
tendency  to  require  merely  a majority  vote. 


Popular  vote  required  for  the  adoption  of  amendments:  As 

has  already  been  indicated,  the  constitution  of  1870  requires  that  a 
proposed  amendment  shall  receive  the  votes  of  a majority  of  the 
electors  voting  at  the  next  election  of  members  of  the  general  as- 
sembly. The  constitution  of  1848  on  the  other  hand  provided  for 
adoption  upon  the  vote  of  a majority  of  all  the  electors  voting  at  the 
next  general  election  for  members  of  the  house  of  representatives. 
The  framers  of  the  constitution  of  1870  do  not  seem  to  have  intended 
to  make  the  adoption  of  a constitutional  amendment  by  popular  vote 
more  difficult,  but  such  a result  was  actually  accomplished  by  a slight 
change  in  phraseology. 

The  constitution  of  1848  provided  that  amendments  should  be 
submitted  at  the  next  general  election  and  “if  a majority  of  all  the 
electors  voting  at  such  election  for  members  of  the  house  of  repre- 
sentatives shall  vote  for  such  amendment  or  amendments,  the  same 
shall  become  a part  of  the  constitution/”  The  constitution  of  1870 
provides  that  proposed  amendments  “shall  be  submitted  to  the  electors 
of  this  state  for  adoption  or  rejection,  at  the 'next  election  of  members 
of  the  general  assembly,  and  if  a majority  of  the  electors  voting  at 
said  election  shall  vote  for  the  proposed  amendments  they  shall  be- 
come a part  of  this  constitution”.  In  view  of  the  fact  that  the  highest, 
vote  at  a general  election  is  apt  to  be  larger  than  the  votes  for  mem- 
bers of  the  general  assembly,  the  constitution  of  1870  under  present 
voting  methods  imposes  a higher  standard  of  popular  vote  than  did 
the  constitution  of  1848.  However,  this  would  probably  not  have  been 
the  case  in  1870,  and  there  was  much  plausibility  in  the  contention 
that  the  language  of  the  two  constitutions  was  intended  to  mean  the 
same  thing,  although,  narrowly  construed,  the  language  of  the  consti- 
tution of  1870  said  something  different  from  that  of  the  constitution 
of  1848.  This  view  was  rejected  by  a divided  court  in  People  v. 
Stevenson.3 

The  form  of  ballot  employed  in  Illinois  at  different  periods  has 
had  a pronounced  influence  upon  the  result  of  popular  voting.  Before 
1848  viva  voce  voting  was  permitted  by  the  constitution  of  Illinois. 
Under  this  plan  when  the  voter  approached  the  polls  he  was  asked  not 
only  to  name  his  choice  of  candidates  but  also  to  vote  “yes”  or  “no” 
upon  any  measure  that  may  have  been  pending.  Under  the  circum- 
stances it  was  easier  to  vote  than  to  refuse  to  answer.  This  in  part 
explains  the  fact  that  the  vote  in  this  state  upon  the  question  of  calling 
a convention  in  1824  was  almost  equal  to  the  total  vote  cast  for  candi- 
dates at  the  same  election. 

The  printed  ballot  has  been  in  use  in  Illinois  since  1848.  Until 
1891,  however,  the  printing  of  ballots  devolved  upon  political  parties, 


17  (1917). 


178 


and  the  parties  could  either:  (1)  omit  all  mention  of  the  proposed 

amendment  from  their  ballots;  (2)  print  the  measure  in  such  a way 
as  to  leave  the  voter  an  option  to  vote  for  or  against  it,  or  (3)  to 
print  either  the  affirmative  or  the  negative  of  the  measure.  The  third 
alternative  was  the  one  usually  taken  advantage  of,  and  every  straight 
party  vote  was  therefore  cast  in  accordance  with  the  party  action 
which  appeared  upon  the  ballot.  Upon  a ballot  of  this  character  it  was 
easily  possible  to  cast  upon  a measure  substantially  the  same  vote  as 
that  cast  by  regular  voters  upon  candidates.  For  this  reason  the 
framers  of  the  constitution  of  1869-70  would  probably  have  had  little 
if  any  notion  of  difficulty  being  occasioned  by  the  variation  in  language 
as  to  the  popular  majority  required  for  the  approval  of  constitutional 
amendments. 

An  official  ballot  act  was  adopted  in  1891  and  constitutional 
amendments  were,  during  the  period  from  1891  to  1899,  printed  upon 
the  official  ballot  for  candidates  with  blank  spaces  for  a vote  upon 
either  side  of  the  question.  During  this  period,  with  measures  printed 
upon  and  usually  at  the  bottom  of  the  candidates  ballot,  less  than 
twenty-five  per  cent  of  those  voting  in  the  elections  expressed  them- 
selves upon  measures.  The  party  column  ballot  did  not  permit  of  any 
satisfactory  adjustment  for  voting  upon  questions,  and  the  only  per- 
sons voting  upon  measures  were  those  who  searched  out  the  measures 
upon  the  printed  ballot.  In  1899  legislation  was  enacted  providing  for 
a separate  ballot  for  measures,  and  with  a separate  ballot  the  number 
of  votes  upon  measures  almost  immediately  doubled.  The  voters’  at- 
tention was  directly  called  to  the  measures  being  submitted,  for  the 
so-called  “little  ballot”  for  measures  was  handed  to  the  voter,  together 
with  the  ballot  for  candidates.  It  became  as  easy  to  vote  upon  the 
measures  as  to  refrain  from  doing  so. 

Upon  measures  whose  importance  was  not  relatively  different,  it 
was  easy  to  get  out  a large  vote  before  1891,  impossible  between  1891 
and  1899,  and  difficult  though  not  impossible  since  1899. 

Upon  the  constitutional  amendment  adopted  in  1904  the  requisite 
vote  was  obtained  only  after  an  expensive  campaign.  Upon,  the 
amendment  of  1908  all  parties  were  united  and  a vigorous  campaign 
was  conducted.  Upon  the  proposed  tax  amendment  of  1916  a vigor- 
ous campaign  was  conducted  but  this  proposal  failed,  although  the 
favorable  vote  was  656,298  as  against  295,782.  The  favorable  vote 
was  not  a majority  of  the  total  vote  at  the  election,  which  was 
1,343,381. 

The  matter  here  discussed  is  of  course  entirely  unrelated  to  the 
terms  of  the  constitution,  but  it  indicates  the  extent  to  which  ballot 
forms  may  determine  the  ease  or  difficulty  of  operating  under  a consti- 
tutional provision.  In  1870  the  popular  vote  required  by  the  constitu- 
tion would  have  been  relatively  easy  to  obtain  upon  almost  any  meas- 
ure as  to  which  the  favorable  sentiment  was  stronger  than  the  opposi- 
tion, and  the  same  situation  substantially  continued  until  1891.  Be- 
tween the  years  1891  and  1899  it  would  have  been  practically  im- 
possible to  adopt  any  constitutional  change  because  of  the  ballot  form 
then  in  use.  Since  1899  a proposed  constitutional  amendment  may  be 


179 


adopted  if  public  sentiment  is  sufficiently  united  and  if  a sufficiently 
vigorous  campaign  is  made,  although  the  chances  even  then  are 
against  the  proposal.4 


Constitutional  convention  under  the  constitution  of  1870:  Un- 
der the  constitution  of  Illinois  the  following  steps  are  necessary  in 
order  to  obtain  constitutional  revision  through  a convention : (1)  sub- 

mission to  the  electors  of  the  question  as  to  whether  a constitutional 
convention  should  be  called,  this  submission  requiring  a vote  (entered 
upon  the  journals  thereof)  of  two-thirds  of  the  members  of  each 
house;  (2)  vote  for  a convention  by  a majority  of  the  electors  voting 
at  the  next  general  election;  (3)  action  by  the  next  general  assembly 
providing  for  a convention;  (4)  meeting  of  the  convention  within 
three  months  after  the  election  of  its  members  and  the  preparation  of 
“such  revision,  alteration  or  amendments  of  the  constitution  as  shall 
be  deemed  necessary”;  (5)  approval  of  such  proposed  changes  by  a 
majority  of  the  electors  voting  at  an  election  appointed  by  the  conven- 
tion for  that  purpose,  not  less  than  two  nor  more  than  six  months 
after  the  adjournment  of  the  convention. 

Since  19Uy  a systematic  and  continuous  effort  has  been  made  to 
obtain  a constitutional  convention  in  this  state,  and  earlier  attempts 
had  been  made  beginning  with  the  year  1884.  It  is  difficult  to  obtain 
a vote  of  two-thirds  of  the  members  of  each  house,  and  equally  difficult 
to  obtain  the  approval  of  a majority  of  the  electors  voting  at  the  next 
general  election.  However  these  difficulties  were  overcome  in  1917 
and  1918  and  the  general  assembly  by  legislation  in  1919  provided  for 
the  assembling  of  the  constitutional  convention  of  1920. 

The  assembling  of  a constitutional  convention  should  be  a difficult 
task,  if  other  and  simpler  methods  are  provided  for  the  alteration  of 
the  constitution  in  specific  cases.  Although  some  changes  in  detail 
should  be  made  in  the  present  section  of  the  Illinois  constitution  with 
respect  to  the  assembling  of  a constitutional  convention,  there  may  be 
some  question  as  to  whether  the  assembling  of  such  a convention 
should  be  made  easier. 


Relation  between  two  methods  of  constitutional  alteration: 

The  chief  difficulty  with  respect  to  the  alteration  of  the  constitution 
of  1870  is  that  both  methods  prescribed  for  constitutional  change  are* 
difficult  of  operation.  The  process  of  specific  amendment  is  neces- 
sarily the  simpler,  and  the  less  expensive.  This  process  should  be  em- 
ployed for  changes  ordinarily  desired,  leaving  the  assembling  of  a con- 
vention for  the  less  frequent  and  more  serious  task  of  re-examination 
of  the  whole  of  the  constitutional  text.  However,  the  two  methods  of 
constitutional  change  now  provided  by  the  constitution  of  Illinois  do 

4 See  Gardner,  C.  O.,  The  working  of  the  state-wide  referendum  in  Illinois. 
American  Political  Science  Review,  V,  394  (1911) 


180 


not  bear  a proper  relationship  to  each  other,  because  the  method  of 
specific  amendment  is  so  difficult  that  constitutional  revision  of  any 
important  character  must  almost  necessarily  await  the  time  when  the 
need  for  change  has  become  so  serious  as  to  force  the  assembling  of  a 
convention.  The  desirable  results  to  be  obtained  from  having  two 
methods  of  constitutional  alteration,  the  one  simple  and  inexpensive, 
the  other  cumbersome  and  expensive,  is,  therefore,  largely  lost  under 
the  present  constitutional  provisions  of  Illinois. 


Use  of  amending  clause  in  Illinois  since  1870:  It  is  of  course 
true  that  no  constitutional  convention  has  been  assembled  in  Illinois 
between  the  years  1870  and  1920,  and  until  1909  no  concerted  and 
persistent  effort  had  been  made  for  the  assembling  of  a constitutional 
convention. 

However,  the  amending  clause  has  been  successfully  employed 
seven  times.  During  the  period  from  1892  to  1899  three  proposed 
amendments  were  submitted.  Upon  the  proposal  submitted  in  1892 
for  the  amendment  of  the  amending  article,  the  negative  vote  was 
larger  than  the  affirmative  vote.  Upon  the  proposed  amendments  of 
1894  and  1896  and  upon  the  proposed  tax  amendment  of  1916  the 
affirmative  vote  was  much  greater  than  the  negative  vote.  A table  of 
amendments  submitted  is  given  below. 


Amendments  submitted  since  i8yo. 


£ 

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Proposition. 

Sh 

o 

in 

a 

3 

be 

O 

ri 
© o 

O+j 

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fri 

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O 

iS® 

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bo  £ 

S°  c 

<H 

<D 

aS 

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o O ,H  o O 

O 

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> 

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h 

Ah 

Ah 

1878 

Drainage  Amend- 

ment   

295,960 

60,081 

356,041 

448,796 

65.94 

79.33 

1880 

County  Officers 

Arrfendment  

321,552 

103,966 

425,518 

622,306 

51.67 

68.37 

1884 

Amendment  veto 

of  separate  items 
of  appropriation 

673,096 

63.56 

72.50 

bills  

427,821 

60,244 

488,065 

1886 

Amendment  abol- 

• 

ishing  contract 

convict  labor  . . . 

306,565 

169,327 

475,892 

574,080 

53.40 

82.89 

1890 

Amendment  auth- 

orizing Chicago 

bond  issue  for 

Columbian  Expo- 
sition   

500,299 

55,073 

555,372 

677,817 

73.81 

81.93 

1892 

Amendment  to 

amending  article. 

84,645 

93,420 

178,065 

871,508 

9.70 

20.43 

1894 

Amendment  to  pro- 

vide for  labor 
legislation  

155,393 

59,558 

214,951 

873,426 

17.79 

24.61 

181 


Amendments  submitted  since  1870. — Concluded. 


Proposition. 


1896  Amendment  to  arti- 
cle on  amendment 

1904  Amendment  provid- 
ing- for  special 
legislation  for 
Chicago 

1908  Amendment  to  sep- 
arate section  on 
canal  to  authorize 
$20,000,000  bond 
issue  

1916  Tax  amendment  to 
the  constitution  . . 


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o0.h0o 

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oa 

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Oh 

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163,057 

66,519 

229,576 

1,090,869 

14.94 

21.04 

678,393 

94,038 

772,431 

1,089,458 

62.27 

70.90 

692,522 

195,177 

887,699 

1,169,330 

59.22 

75.91 

656,298 

295,782 

952,080 

1,343,381 

48.85 

70.87 

Eleven  proposed  amendments  have  been  submitted  since  1870  of 
which  seven  have  been  adopted  and  of  which  four  have  failed.  At- 
tention however  should  be  called  to  the  fact  that  five  of  the  amend- 
ments which  have  been  adopted  were  voted  upon  before  the  official 
ballot  law  of  1891.  Of  the  six  amendments  submitted  since  that  time 
one  received  a smaller  affirmative  than  negative  vote,  two  were 
adopted,  and  three  failed  of  adoption  because  not  obtaining  a majority 
of  all  votes  cast  in  the  general  election. 

As  has  been  suggested  above,  the  provision  regarding  the  sub- 
mission of  an  amendment  to  but  one  article  of  the  constitution  at 
the  same  session  has  in  many  sessions  occasioned  deadlocks  and  has  pre- 
vented the  submission  of  proposed  amendments.  The  submission  of 
proposed  amendments  by  the  general  assembly  has  also  been  discour- 
aged by  the  knowledge  that  it  would  be  very  difficult  to  obtain  the 
adoption  of  such  amendments. 


Suggested  changes  in  details  of  present  amending  clause:  A 

number  of  points  in  the  present  article  for  the  alteration  of  the  con- 
stitution require  comment  in  connection  with  possible  changes : 

(a)  Section  1 of  Article  XIV  requires  for  the  calling  of  a con- 
vention a majority  vote  at  the  next  general  election.  Section  2 re- 
quires for  the  adoption  of  a proposed  amendment  “a  majority  of  the 
electors  voting”  at  the  next  election  of  members  of  the  general  as- 
sembly. This  variation  in  language  might  easily  have  been  construed 
to  indicate  a variation  in  intent,  and  this  view  was  actually  taken  by 
two  members  of  the  Supreme  Court  in  the  case  of  People  v.  Steven- 
son, 281  111.  17  (1917).  The  language  in  these  two  sections  should  be 
made  uniform  or  clarified  although  the  decision  of  the  Supreme  Court 
has  already  by  interpretation  accomplished  the  result  of  clearing  up 
any  ambiguity. 


182 


(b)  Section  2 of  Article  XIV  requires  for  the  proposal  of 
amendments  a vote  of  two-thirds  of  all  the  members  elected  to  each 
of  the  two  houses.  Article  XIV,  Section  1,  provides  for  a vote,  in 
submitting  the  question  of  calling  a convention,  of  two-thirds  of  the 
members  of  each  house  of  the  general  assembly.  The  language  in 
these  two  places  was  probably  intended  to  mean  the  same  thing,  but 
if  the  necessity  for  future  judicial  interpretation  of  one  of  these 
clauses  is  to  be  avoided,  the  language  should  be  made  uniform.  The 
language  of  Section  2 is  perfectly  clear.  The  language  of 
Section  1 may  perhaps  be  more  properly  construed  to  re- 
quire merely  two-thirds  of  a quorum  of  each  house  although 
in  view  of  the  other  provisions  of  the  constitution  regarding 
legislative  votes,  this  may  be  doubtful.  Language  similar  to 
that  of  Article  XIV,  Section  1,  has  been  construed  in  other  states  to 
require  merely  two-thirds  of  a quorum,  and  a view  supporting  such 
a construction  has  recently  been  taken  by  the  United  States  Supreme 
Court.5 

(c)  Article  XIV,  Section  1 of  the  constitution  provides  that 
delegates  to  a convention  shall  be  elected  in  the  same  manner  “as 
members  of  the  senate”.  This  has  been  almost  necessarily  construed 
to  require  partisan  nomination  and  election  of  delegates  in  1919. 
Such  a result  could  in  no  way  have  been  anticipated  by  the  framers 
of  the  constitution  of  1870,  and  if  the  result  is  not  desired  a change 
of  the  section  should  be  made  in  this  respect.6 

(d)  Article  XIV,  Section  1,  of  the  constitution  provides  that 
the  qualifications  of  members  of  the  convention  shall  be  the  same  as 
that  of  members  of  the  senate.  The  result  of  this  provision  is  to  apply 
to  delegates  the  provisions  of  Article  IV,  Sections  3 and  4 of  the 
constitution,  and  to  exclude  members  of  the  general  assembly  from 
membership  in  the  constitutional  convention  unless  they  cease  to  be 
members  of  the  general  assembly.  Such  a result  may  or  may  not 
have  been  intended,  but  it  should  be  borne  in  mind  that  permitting 
the  present  language  to  stand  as  it  is  will  have  the  result  indicated. 

5 Green  v.  Weller,  32  Miss.  650  (1856);  State  v.  McBride,  4 Mo.  303  (1836); 
Missouri  Pacific  Railway  Co.  v.  Kansas,  248  U.  S.  276  (1919). 

6 Manner  of  choosing-  delegates  to  the  Illinois  constitutional  convention,  pub- 
lished by  the  Citizens  Association  of  Chicago,  January,  1919. 


183 


0 


III.  AMENDING  METHODS  IN  OTHER  STATES. 


Of  the  present  state  constitutions  the  provisions  for  specific 
amendment  may  be  divided  into  six  classes : 

(1)  The  proposal  of  amendments  by  a constitutional  conven- 
tion only  (New  Hampshire)  ; 

(2)  Amendment  by  the  action  of  two  successive  legislatures, 
without  a direct  popular  vote.  (Delaware)  ; 

(3)  Proposal  by  the  legislature  with  a popular  vote  upon  the 
proposal,  but  with  the  ultimate  approval  or  rejection  (South  Caro- 
lina) or  the  insertion  of  the  amendment  into  the  constitution  (Miss- 
issippi) left  with  the  legislature  after  the  people  have  approved  a 
proposed  amendment.  It  should  be  noted,  however,  that  in  Mississ- 
ippi, initiated  amendments  take  effect  upon  approval  by  the  people. 

(4)  Amendments  proposed  by  the  legislature  and  subject  to 
popular  approval,  but  with  the  amending  process  subject  to  such  re- 
strictions as  to  make  constitutional  amendment  difficult.  Such  re- 
strictions are  of  three  kinds : 

(a)  The  requirement  of  action  by  two  successive  legisla- 
tures for  the  proposal  of  amendments.  (Connecticut,  Indiana, 
Iowa,  Massachusetts,  New  Jersey,  Nevada,  New  York,  Pennsyl- 
vania, Rhode  Island,  Tennessee,  Vermont,  Virginia,  Wisconsin). 
Of  the  states  enumerated  here,  attention  should  be  called  to  the 
fact  that  Massachusetts  in  1918  and  Nevada  in  1912  adopted  a 
popular  initiative  for  the  proposal  of  constitutional  amendments. 

(b)  Limitations  as  to  the  number,  frequency  and  character 
of  proposals.  (Arkansas,  Colorado,  Illinois,  Indiana,  Kansas, 
Kentucky,  Montana,  New  Jersey,  Pennsylvania,  Tennessee,  Ver- 
mont.) Of  these  states,  attention  should  be  called  to  the  fact 
that  Colorado,  (1910)  adopted  the  initiative  for  the  proposal  of 
constitutional  amendments,  and  that  the  initiative  process  is 
held  to  be  free  from  the  limitation  upon  the  number  of  amend- 
ments that  may  be  submitted;  and  that  Arkansas,  (1910)  permits 
the  popular  initiative  of  constitutional  amendments,  but  that  in 
Arkansas  the  popular  initiative  of  amendments  is  held  subject  to 
limitation  as  to  the  number  of  proposed  amendments  that  may  be 
submitted. 

(c)  Requirements  of  a popular  vote  greater  than  that  of  a 
majority  of  all  persons  voting  upon  the  amendment.  (Alabama, 
Arkansas,  Connecticut.  Illinois,  Indiana,  Minnesota,  Mississippi, 
Nebraska,  Oklahoma,  Rhode  Island,  Tennessee,  Wyoming).  Ar- 
kansas (1910)  permits  the  adoption  of  amendments  proposed  by 
initiative  petition  by  a majority  of  those  voting  upon  the  ques- 
tion, but  still  requires  for  amendments  proposed  by  legislative 


184 


action  a majority  of  those  voting  at  the  election.  Nebraska 
(1912)  requires  a 35  per  cent  affirmative  vote  of  those  voting 
at  the  election  for  amendments  proposed  by  initiative  petition 
and  a majority  of  those  voting  at  the  election  for  amendments 
proposed  by  the  legislature.  Mississippi  requires  a majority  of 
those  voting  at  the  election  for  constitutional  amendments  pro- 
posed by  the  legislature,  but  only  a majority  of  those  voting  upon 
the  question  for  amendments  proposed  by  initiative  petition. 
Amendments  proposed  by  constitutional  convention  in  New  Hamp- 
shire must  receive  two-thirds  of  the  vote  cast  upon  the  question 
for  their  adoption  or  rejection. 

(5)  The  unrestricted  proposal  of  amendments  by  one  legislative 
action  merely  and  adoption  by  a majority  of  the  persons  voting  thereon. 
(Maryland,  Michigan,  Missouri,  New  Mexico,  North  Carolina,  North 
Dakota,  Ohio,  Oregon,  South  Dakota,  Texas,  Utah,  Washington,  West 
Virginia.)  It  is  possible  that  New  Mexico  should  be  placed  in  the 
group  of  states  having  restrictions  as  to  the  character  of  proposals, 
although  the  method  of  proposal  under  an  amendment  of  1912  is  not 
difficult.  The  restrictions  upon  the  legislative  proposal  of  amendments 
in  Colorado,  Kansas  and  Montana  are  so  slight  as  to  make  it  proper  to 
class  the  constitutions  of  these  states  here  rather  than  among  those 
difficult  of  amendment.  South  Carolina  may  also  be  classed  with  this 
group  in  so  far  as  respects  the  proposal  of  and  popular  vote  upon 
amendments. 

(6)  Those  which  in  addition  to  the  legislative  power  of  proposal 
permit  the  popular  initiation  of  constitutional  amendments.  (Arizona, 
Arkansas,  California,  Colorado,  Massachusetts,  Michigan,  Mississippi, 
Missouri,  Nebraska,  Nevada,  North  Dakota,  Ohio,  Oklahoma, 
Oregon.) 

The  tendency  has  been  steadily  toward  the  easy  amending  process 
represented  by  the  fifth  type,  and  since  1902  there  has  been  a rapid 
development  in  the  use  of  the  popular  initiative  for  the  amendment  of 
constitutions.  The  group  of  states  whose  constitutions  are  least  flexi- 
ble is  that  of  subdivision  (c)  of  the  fourth  type;  but  where,  in  ad- 
dition to  the  requirement  of  a majority  of  all  votes  at  an  election, 
there  are  other  restrictions  upon  the  amending  process,  the  alteration 
of  a constitution  often  becomes  practically  impossible.  This  is  true 
of  Tennessee,  where  we  have  a combination  of  limitations — not  only 
is  a majority  of  all  votes  for  representatives  required  to  be  cast  for  an 
amendment,  but  amendments  may  only  be  proposed  once  in  six  years, 
and  the  action  of  two  successive  legislatures  is  required  for  such  pro- 
posal. So,  but  to  a less  extent  than  in  Tennessee,  the  amending  pro- 
cedure in  Illinois  and  Indiana  is  burdened  by  restrictions  to  such  an 
extent  as  to  be  practically  unworkable,  although  the  Indiana  restric- 
tions are  more  serious  than  those  of  Illinois. 

The  requirement  of  proposal  by  two  successive  legislatures,  while 
it  defeats  many  projects  which  would  otherwise  go  to  the  people,  can- 
not be  said  to  interpose  serious  obstacles  in  the  way  of  constitutional 
alteration,  nor  in  fact  even  in  the  cases  of  Vermont,  Tennessee,  New 
Jersey,  Pennsylvania  and  Illinois  do  the  restrictions  upon  the  proposal 


185 


of  amendments  interpose  insuperable  barriers,  but  when  these  pro- 
visions are  combined  with  the  requirement  of  a popular  vote  which  is 
ordinarily  impossible  to  obtain  except  upon  questions  of  the  greatest 
importance,  as  is  done  in  Tennessee,  the  amending  process  becomes 
almost  useless.  Even  where  the  restrictions  are  not  so  stringent,  but 
where  two  legislative  actions  are  required  and  the  power  of  legislative 
proposal  restricted,  the  amending  process  is  slow  and  cumbersome, 
preventing  a ready  adjustment  of  the  constitution  to  changing  con- 
ditions. This  is  peculiarly  true  in  view  of  the  fact  that  substantially 
all  of  the  state  constitutions  outside  of  New  England  contain  numer- 
ous detailed  provisions  which  may  require  frequent  alteration. 

The  hindrances  to  constitutional  change  which  have  been  devised 
are  of  two  kinds:  (1)  Those  which  make  any  change  difficult,  and 

(2)  those  which  make  an  actual  change  fairly  easy  but  which  provide 
a method  of  change  requiring  a long  time  for  its  operation.  The  pro- 
visions requiring  a popular  vote  equal  to  that  of  a majority  of  all 
votes  cast  in  a general  election,  belong  to  the  first  class.  Those  requir- 
ing two  legislative  actions  and  permitting  the  proposal  of  amendments 
only  at  long  intervals  belong  to  the  second  class.  Certainly  the  re- 
quirement of  a long  time  to  obtain  an  amendment  forms  a check  upon 
constitutional  change.  The  limitation  through  the  requirement  of 
action  by  two  successive  legislatures  is  not  serious  in  the  small  number 
of  states  still  having  annual  legislative  sessions,  as  in  New  York  and 
South  Carolina. 


Limitations  upon  submission  of  constitutional  amendments: 

There  are  twelve  constitutions  which  impose  limitations  as  to  the 
number,  frequency  and  character  of  proposed  amendments.  New 
Jersey  permits  the  proposal  of  amendments  only  once  in  five  years, 
Tennessee  once  in  six  years,  and  Vermont  once  in  ten  years.  Pennsyl- 
vania provides  that  no  amendment  or  amendments  shall  be  submitted 
oftener  than  once  in  five  years.  The  Illinois  constitution  provides  that 
no  amendments  shall  be  proposed  to  more  than  one  article  of  the  con- 
stitution at  the  same  session,  and  that  the  same  article  shall  not  be 
amended  oftener  than  once  in  four  years.  Colorado  (1876)  provided 
that  the  legislature  should  not  have  power  to  propose  amendments  to 
more  than  one  article  at  the  same  session,  but  this  provision  was 
amended  in  1900  so  as  to  permit  the  proposal  of  amendments  to  six 
articles  at  the  same  time,  and  even  this  limitation  is  held  not  to  apply 
to  initiated  amendments.1 

In  Indiana,  while  an  amendment  agreed  upon  by  one  legislature 
is  waiting  the  action  of  the  succeeding  legislature,  no  additional 
amendment  may  be  proposed.  A similar  provision  of  the  Oregon 
constitution  was  repealed  in  1906.  Arkansas,  Kansas  and  Montana 
forbid  the  submission  of  more  than  three  amendments  at  the  same 
election,  and  the  Arkansas  limitation  is  held  to  apply  to  amendments 


1 People  ex  rel.  Tate  v.  Provost,  55  Colo.  199  (1913). 


186 


proposed  by  initiative  petition  as  well  as  to  those  proposed  by  the  leg- 
islature.2 

Kentucky  forbids  the  submission  of  more  than  two  amendments 
at  the  same  time  and  provides  that  the  same  amendment  shall  not  be 
submitted  oftener  than  once  in  five  years.  The  provisions  in  Arkan- 
sas, Florida,  Kentucky,  New  Mexico  and  Texas  that  amendments  may 
be  submitted  only  at  regular  legislative  sessions  do  not  constitute  a 
serious  restriction  upon  the  amending  power.  The  New  Mexico  con- 
stitution provides  that  no  amendment  affecting  certain  matters  relat- 
ing to  the  elective  franchise  and  education  shall  have  effect  unless  it 
be  proposed  by  a vote  of  three-fourths  of  the  members  elected  to  each 
house  and  ratified  by  a vote  of  the  people  in  an  election  at  which  at 
least  three-fourths  of  the  electors  voting  in  the  whole  state,  and  at 
least  two-thirds  of  those  voting  in  each  county  in  the  state,  shall  vote 
for  such  amendment.  The  New  Mexico  provision  was  intended  for 
the  purpose  of  giving  guarantees  to  the  Spanish  speaking  population. 
Certain  restrictions  upon  the  use  of  the  initiative  in  proposing  amend- 
ments are  commented  upon  in  another  place. 

The  restrictions  upon  the  proposal  of  amendments  in  Arkansas, 
Colorado,  Kansas  and  Montana  are  relatively  slight  and  have  not 
proven  troublesome,  except  in  Arkansas  where  two  methods  of  sub- 
mission have  come  into  conflict.  However,  the  limitations  in  Pennsyl- 
vania, New  Jersey,  Vermont,  Tennessee,  Indiana  and  Illinois  are  so 
strict  as  to  prevent  the  ready  adaptation  of  the  constitutions  to  chang- 
ing conditions. 


Legislative  action  in  submitting  constitutional  amendments: 

The  requirement  of  action  by  two  successive  legislatures  was  aban- 
doned by  Illinois  in  1848,  and  the  tendency  throughout  the  country 
for  some  time  has  been  directly  away  from  such  a plan.  Of  the  nine- 
teen constitutions  adopted  since  1885  all  but  three  provided  for  action 
by  one  legislature  only;  Oregon  by  amendment  of  1906  and  North 
Dakota  by  amendment  of  1918  have  made  a similar  provision.  In  the 
states  providing  for  only  one  legislative  action,  it  has  usually  been 
customary  to  require  such  action  to  be  taken  by  'more  than  a majority 
of  the  legislature.  Of  the  thirty-three  constitutions  to  which  amend- 
ments may  now  be  proposed  by  one  legislative  action,  nine  permit  such 
proposal  by  a majority  vote  (Arizona,  Arkansas,  Minnesota,  Missouri, 
New  Mexico,  North  Dakota,  Oklahoma,  Oregon,  and  South  Dakota)  ; 
seven  require  a three-fifths  vote  (Alabama,  Florida,  Kentucky,  Mary- 
land, Nebraska,  North  Carolina,  Ohio)  ; and  seventeen  require  a vote 
of  two-thirds  of  the  members  of  each  of  the  two  houses  (California, 
Colorado,  Georgia,  Idaho,  Illinois,  Kansas,  Louisiana,  Maine,  Michi- 
gan, Mississippi,  Montana,  South  Carolina,  Texas,  Utah,  Washington, 
West  Virginia  and  Wyoming). 

In  practically  all  the  states  the  constitutions  specify  that  the 
majorities  required  for  the  proposal  of  amendments  shall  be  majori- 
ties of  all  members  elected  to  each  of  the  two  houses,  although  in  a 


2 State  ex  rel.  Little  Rock  v.  Donaghey,  106  Ark.  56  (1912). 


187 


few  cases  the  requirement  is  that  of  a majority  or  a greater  propor- 
tion of  the  members  of  the  two  houses.  A reference  has  already 
been  made  above  to  the  confusion  likely  to  result  through  the  fact 
that  the  convention  clause  of  the  Illinois  constitution  does  not  state 
a precise  standard  in  this  regard. 

The  rejected  New  York  constitution  of  1915  provided  for  a 
joint  session  of  the  two  houses  to  consider  a proposed  amendment 
after  either  house  had  adopted  such  a proposal,  leaving  the  action 
of  each  house  to  be  taken  separately,  however.  A use  of  joint  ses- 
sions is  prescribed  in  Massachusetts  for  the  consideration  of  pro- 
posals of  amendment  initiated  by  popular  petition. 


Proposal  by  popular  initiative:  A separate  pamphlet  is  de- 

voted to  the  initiative  and  referendum,  and  in  this  pamphlet  will  be 
found  a full  analysis  of  the  initiative  and  referendum  provisions  in 
all  states  which  have  applied  the  initiative  to  constitutional  amend- 
ments. No  effort  will  be  made  here  to  analyze  the  initiative  pro- 
visions of  state  constitutions  in  detail,  but  a statement  will  be  made 
sufficiently  full  to  indicate  the  relationship  of  the  popular  initiative 
to  other  methods  of  altering  state  constitutions. 

Of  the  states  which  have  adopted  the  popular  initiative,  four- 
teen apply  this  institution  to  the  proposal  of  constitutional  amend- 
ments, so  that  in  these  states  there  are  two  methods  of  specific  pro- 
posal of  constitutional  changes  (Arizona,  Arkansas,  California,  Colo- 
rado, Massachusetts,  Michigan,  Mississippi,  Missouri,  Nebraska,  Ne- 
vada, North  Dakota,  Ohio,  Oklahoma  and  Oregon).  The  states  of 
Oregon,  Nevada,  Missouri,  Arkansas,  Colorado  and  Mississippi  pen 
mit  the  use  of  the  initiative  for  the  proposal  of  constitutional  amend- 
ments in  the  same  manner  as  for  the  proposal  of  laws.  California 
substantially  belongs  in  this  group,  the  only  distinction  in 

this  state  being  that  for  statutes  there  is  both  a direct  and  an  indirect 
initiative,  while  for  constitutional  amendments  there  is  merely  a direct 
initiative. 

In  seven  states  distinctions  are  made  between  constitutional 
amendments  and  statutes.  In  Oklahoma,  Arizona,  Nebraska  and 

North  Dakota  a larger  petition  is  required  to  propose  a constitutional 
amendment.  In  Oklahoma  an  eight  per  cent  petition  is  sufficient  for 

ordinary  legislation,  and  a fifteen  per  cent  petition  is  required  for 

constitutional  amendments.  In  Arizona  and  Nebraska  the  initiation 
of  ordinary  legislation  is  accomplished  by  a ten  per  cent  petition,  but 
for  constitutional  amendment  a fifteen  per  cent  petition  is  required.  In 
North  Dakota  the  initiation  of  a law  requires  a petition  of  10,000 
voters,  and  the  initiation  of  a constitutional  amendment  requires 
a petition  of  20,000.  Michigan  provides  for  an  indirect  initiative 
petition  of  eight  per  cent  for  ordinary  legislation,  and  for  a direct 
initiative  petition  of  ten  per  cent  for  constitutional  amendments. 
Ohio  provides  for  an  indirect  initiative  upon  ordinary  legislation  with 
an  original  petition  of  three  per  cent  and  a supplemental  petition  of 


188 


an  additional  three  per  cent,  but  for  a ten  per  cent  direct  initiative 
upon  constitutional  amendments.  Massachusetts  provides  for  a much 
more  complex  method  of  initiating  constitutional  amendments  than 
for  the  initiation  of  statutes.  Under  the  Massachusetts  constitution, 
25,000  voters  may  present  an  initiative  petition  for  a constitutional 
amendment.  The  proposed  amendment  then  goes  before  a joint  ses- 
sion of  the  general  court  and  three-fourths  of  the  members  voting 
in  joint  session  may  amend  the  proposal.  If  in  such  joint  session 
an  initiative  amendment  receives  the  affirmative  vote  of  not  less  than 
one-fourth  of  all  the  members  elected  it  is  referred  to  the  next  gen- 
eral court.  In  the  next  general  court  if  an  initiative  amendment  or  if 
a legislative  substitute  for  such  amendment  receives  the  affirmative 
votes  of  at  least  one-fourth  of  all  the  members  elected,  the  proposed 
amendment  is  submitted  to  the  people  at  the  next  state  election  and 
is  adopted  if  it  is  approved  by  a majority  of  those  voting  on  the 
amendment,  such  majority  equaling  thirty  per  cent  of  the  total  num- 
ber of  ballots  cast  at  the  election. 

Attention  should  be  called  particularly  to  the  fact  that  Arkansas, 
Nebraska  and  Mississippi  make  the  popular  adoption  of  an  amend- 
ment proposed  by  initiative  petition  easier  than  the  popular  adoption 
of  an  amendment  proposed  .by  legislative  action.  In  Arkansas  and 
Mississippi  an  amendment  proposed  by  the  legislature  requires  a 
majority  of  all  votes  cast  at  the  election;  an  amendment  proposed  by 
popular  petition  requires  merely  a majority  of  the  votes  cast  upon 
the  question.  In  Nebraska  an  amendment  proposed  by  legislative 
action  requires  a majority  of  all  votes  cast  at  the  election;  an  amend- 
ment proposed  by  popular  petition,  an  affirmative  vote  equal  to  thirty- 
five  per  cent  of  the  total  vote  cast  at  the  election. 

The  use  of  the  popular  initiative  for  constitutional  amendments 
upon  certain  subjects  is  prohibited  by  a number  of  detailed  provisions 
in  Massachusetts.  Nebraska  and  Massachusetts  prohibit  the  proposal 
of  the  same  measure  oftener  than  once  in  three  years,  and  Oklahoma 
provides  that  a measure  rejected  under  the  initiative  and  referendum 
shall  not  be  again  submitted  in  less  than  three  years  by  less  than  a 
twenty-five  per  cent  petition. 


Popular  vote  required  for  the  adoption  of  amendments:  The 

constitution  of  Illinois  requires  that  a proposed  amendment  in  order 
to  be  adopted  shall  receive  the  votes  of  a majority  of  the  electors 
voting  at  a general  election. 

At  least  nine  other  states3  have  requirements  which  either  ex- 
pressly or  by  interpretation  require  that  a measure  receive  a majority  of 
all  votes  cast  at  the  election  in  which  submitted,  although  in  Alabama 
and  Oklahoma  amendments  may  be  submitted  at  a special  election, 

3 Alabama,  Arkansas,  Indiana,  Minnesota,  Mississippi,  Nebraska,  Oklahoma, 
Tennessee,  Wyoming1.  Attention  should  be  called  to  the  fact  that  in  Arkansas  and 
Mississippi  a majority  of  those  voting  upon  the  question  is  sufficient  to  adopt  an 
amendment  proposed  by  a popular  petition,  and  in  Nebraska  a thirty-five  per  cent 
affirmative  vote  is  sufficient  to  adopt  a proposal  presented  by  a popular  petition. 


189 


where  of  course  the  majority  of  those  voting  upon  the  question  is 
substantially  equivalent  to  a majority  of  those  voting  at  the  election. 
Constitutional  amendments,  however,  must  ordinarily  be  submitted  at 
general  elections,  even  where  this  is  not  expressly  required,  because 
of  the  almost  prohibitive  expense  of  a special  election. 

Rhode  Island  requires  that  proposed  amendments  shall  be  ap- 
proved by  three-fifths  of  the  electors  of  the  state  present  and  voting 
thereon,  and  New  Hampshire  requires  the  approval  of  two-thirds 
of  the  qualified  voters  present  and  voting  upon  a proposal. 

The  Michigan  constitution  of  1908  authorized  a limited  use  of 
the  initiative  for  the  proposal  of  constitutional  amendments,  and  re- 
quired that  such  a proposed  amendment  in  order  to  be  adopted  should 
receive  a majority  of  the  votes  cast  upon  its  adoption  or  rejection, 
and  the  affirmative  vote  should  not  be  less  than  one-third  of  the  highest 
number  of  votes  cast  at  the  same  election  for  any  office.  Nebraska 
provides  with  respect  to  initiated  amendments  that  they  shall  be 
adopted  by  a majority  of  the  votes  cast  thereon  provided  that  the 
favorable  vote  shall  constitute  thirty-five  per  cent  of  the  vote  cast 
at  the  election.  The  first  proposed  amending  clause  of  the  New 
Mexico  constitution  required  that  proposed  amendments  be  submit- 
ted at  a general  election  and  receive  an  affirmative  vote  equal  to  at 
least  forty  per  cent  of  all  votes  cast  in  the  state  and  in  at  least  half 
of  the  counties.  In  the  New  York  convention  of  1894  it  was 
proposed  that  an  amendment  should  be  adopted  by  either  of  the 
following  methods:  (1)  by  a majority  of  all  the  electors  voting 

at  a general  election,  or  by  the  affirmative  vote  of  a majority  of  the 
electors  voting  thereon,  provided  that  two-thirds  of  all  the  electors 
voting  at  an  election  voted  thereon,  or  (2)  if  submitted  at  a special 
election  provided  that  the  affirmative  vote  equal  a majority  of  all 
the  electors  voting  at  the  last  preceding  general  election ; or  by  a 
vote  of  those  voting  thereon  provided  the  vote  at  the  special  election 
equal  two-thirds  of  the  vote  at  the  last  preceding  general  election. 


IV.  REVISION  OF  CONSTITUTION  THROUGH 
CONVENTION. 


In  view  of  the  fact  that  a number  of  states  have  no  provisions 
regarding  the  assembling  of  constitutional  conventions,  but  actually 
employ  such  a convention,  and  in  further  view  of  details  existing  in 
various  states  with  respect  to  the  convention,  it  is  difficult  to  sum- 
marize briefly  the  different  types  of  constitutional  provisions  with 
respect  to  this  matter.  A statement  is  given  below  which  seeks  to 
summarize  in  several  groups  the  provisions  with  respect  to  this  mat- 
ter in  the  several  states,  but  attention  should  be  called  to  the  fact 
that  this  statement  does  not  attempt  any  precise  logical  arrang€ment 
of  these  states: 

(1)  State  with  provision  for  change  only  by  means  of  a consti- 
tutional convention.  New  Hampshire.  This  state  requires  a pop- 
ular vote  to  assemble  a convention,  and  popular  approval  of  the  con- 
vention’s work. 

(2)  States  having  no  provisions  for  constitutional  conventions: 
Arkansas,  Connecticut,  Indiana,  Louisiana,  Massachusetts,  Missis- 
sippi, New  Jersey,  North  Dakota,  Pennsylvania,  Rhode  Island,  Texas 
and  Vermont.  In  a number  of  these  states  conventions  have  actually 
been  assembled  in  the  absence  of  constitutional  provisions  for  such 
conventions,  and  the  generally  accepted  views  is  that  the  legislature  may 
provide  for  the  calling  of  a convention,  even  though  the  constitution 
contains  no  provision  with  reference  thereto.  A Rhode  Island  opinion 
constitutes  an  exception  to  this  statement.  In  Indiana  a recent  judicial 
decision  takes  the  view  that  in  the  absence  of  constitutional  pro- 
vision the  legislature  may  call  a constitutional  convention,  but  that  the 
proposal  for  such  a convention  must  first  be  submitted  to  popular 
vote.1 

(3)  Provision  merely  authorizing  legislature  to  call  convention, 
without  any  limitations  as  to  popular  vote  either  for  the  calling  of 
the  convention  or  upon  the  work  of  the  convention : Maine,  Georgia. 

(4)  States  which  require  the  submission  to  the  voters  of  the 
question  of  calling  a constitutional  convention.  There  are  thirty-four 
states  which  now  require  such  a submission:  Alabama,  Arizona, 
California,  Colorado,  Delaware,  Florida,  Idaho,  Illinois,  Iowa,  Kan- 
sas, Kentucky,  Maryland,  Michigan,  Minnesota,  Missouri  Montana, 
Nebraska,  Nevada,  New  Hampshire,  New  Mexico,  New  York,  North 
Carolina,  Ohio,  Oklahoma,  Oregon,  South  Carolina,  South  Dakota, 
Tennessee,  Utah,  Virginia,  Washington,  West  Virginia,  Wisconsin, 
Wyoming. 


1 Bennett,  v.  Jackson,  186  Ind.  533  (1917). 


191 


(5)  States  authorizing  conventions  and  requiring  a popular  vote 

to  assemble  a convention  but  not  expressly  requiring  the  submission  of 
the  work  of  the  convention  to  popular  vote : Alabama,  Delaware, 

Florida,  Iowa,  Kentucky,  Kansas,  Minnesota,  Nevada,  North  Caro- 
lina, Oregon,  South  Carolina,  South  Dakota,  Tennessee,  Virginia, 
Wisconsin.  Generally,  however,  constitutions  have  been  submitted 
both  in  the  states  having  no  constitutional  provisions  regarding  con- 
ventions and  in  the  states  having  no  requirements  for  submission  to 
popular  vote. 

(6)  States  expressly  requiring  a popular  vote  to  assemble  a con- 
vention and  also  expressly  requiring  submission  of  the  work  of  the 
convention  to  a popular  vote.  Of  these  there  are  nineteen : Arizona, 
California,  Colorado,  Idaho,  Illinois,  Maryland,  Michigan,  Missouri, 
Montana,  Nebraska,  New  Hampshire,  New  Mexico,  New  York,  Ohio, 
Oklahoma,  Utah,  Washington,  West  Virginia,  Wyoming. 

(7)  Those  requiring  a periodical  submission  of  the  question  of 

holding  a constitutional  convention:  New  Hampshire  (seven  years), 

Iowa  (ten  years),  Michigan  (sixteen  years),  Maryland,  New  York, 
Ohio  (twenty  years).  The  constitutions  of  Iowa,  New  York,  Mich- 
igan and  Ohio  also  contain  provisions  permitting  submission  of  the 
question  at  other  times  than  the  ten,  sixteen  and  twenty  year  periods. 
The  Oklahoma  constitution  leaves  to  legislative  discretion  as  to  when 
the  question  shall  be  submitted,  but  requires  that  it  be  submitted  once 
in  every  twenty  years. 

(8)  Constitutions  whose  provisions  regarding  a constitutional 
convention  are  made  completely  independent  of  any  legislative  action : 
New  York,  Michigan. 

The  popular  vote  required  to  authorize  a convention  varies.  Sev- 
enteen states  either  expressly  or  impliedly  require  that  the  necessary 
vote  shall  be  a majority  of  those  cast  upon  the  subject  of  holding  a 
convention : Arizona,  California,  Colorado,  Delaware,  Florida,  Mis- 

souri, Montana,  New  Hampshire,  New  York,  New  Mexico,  North 
Carolina,  Ohio,  Oklahoma,  Oregon,  Virginia,  West  Virginia,  Wiscon- 
sin ; and  Kentucky  has  a similar  provision  with  the  additional  require- 
ment that  the  total  'number  of  votes  cast  for  the  calling  of  a conven- 
tion be  equal  to  one-fourth  of  the  number  of  votes  cast  at  the  preceding 
general  election.  Twelve  states  require  that  the  proposal  of  a con- 
vention shall  be  approved  by  a majority  of  those  voting  at  a general 
election:  Idaho,  Illinois,  Kansas,  Maryland,  Minnesota,  Nebraska, 

Nevada,  South  Carolina,  South  Dakota,  Utah,  Washington,  Wyoming. 
Alabama  and  Tennessee  require  a majority  of  the  votes  cast  in  the 
election  in  which  a proposal  is  submitted,  but  permit  such  submission 
to  be  made  at  either  a general  or  special  election.  Michigan  requires 
a majority  vote  of  electors  qualified  to  vote  for  members  of  the  legis- 
lature. The  vote  upon  the  question  of  holding  a constitutional  con- 
vention may  also  be  taken  at  special  elections  in  Missouri,  Montana, 
Oklahoma,  Virginia  and  West  Virginia. 

Upon  the  question  of  adopting  or  rejecting  the  work  of  a con- 
stitutional convention,  Arizona.  Michigan.  Maryland,  Nebraska,  New 


192 


York,  Ohio  and  Oklahoma  require  merely  a majority  of  those  voting 
upon  the  question  of  adoption  or  rejection.  California,  Colorado,  Illi- 
nois, Missouri,  Montana,  and  Utah  require  a majority  of  all  persons 
voting  at  an  election,  but  California  expressly  requires  that  such  sub- 
mission be  at  a special  election,  and  Illinois  and  some  other  states 
permit  submission  either  at  a general  or  a special  election. 

Constitutions  vary  greatly  in  the  extent  to  which  they  prescribe 
details  regarding  the  composition  and  election  of  delegates  to  consti- 
tutional conventions.  The  constitution  of  Missouri  makes  the  as- 
sembling of  a convention  independent  of  legislative  action  after  the 
people  have  voted  (upon  legislative  authorization)  that  a convention 
shall  be  held.  The  New  York  constitution  of  1894  and  the  Michigan 
constitution  of  1908  make  a convention  completely  independent  of 
legislative  action,  provided  one  is  assembled  as  a result  of  the  period- 
ical votes  required  to  be  had  upon  the  subject  in  these  states.  This 
independence  of  the  convention  was  provided  for  first  in  New  York  be- 
cause of  the  fact  that  a popular  vote  in  favor  of  a constitutional  con- 
vention was  had  in  New  York  in  1886,  but  because  of  political  differ- 
ences, legislative  provision  for  such  convention  was  not  made  promptly 
and  the  convention  did  not  actually  assemble  until  1894. 

In  some  states  which  have  adopted  the  popular  initiative,  the 
initiative  provisions  are  sufficiently  broad  to  permit  of  being  used  for 
the  purpose  of  initiating  a proposal  for  the  holding  of  a constitutional 
convention.  A power  by  initiative  petition  to  force  a vote  upon  the 
holding  of  a constitutional  convention  is  not  expressly  found  in  any 
constitutional  provision  and  results  from  implication,  so  that  it  is  diffi- 
cult to  say  in  what  states  the  popular  initiative  may  be  so  used.  How- 
ever, the  constitutional  provisions  for  the  popular  initiative  in  Arizona, 
Michigan,  Maine,  Oregon,  Missouri  and  Oklahoma  seem  to  include  a 
power  to  initiate  a proposal  for  the  holding  of  a constitutional  con- 
vention. 


193 


V.  ANALYSIS  AND  CONCLUSIONS. 


Attention  has  already  been  called  to  the  fact  that  in  a group  of 
states  a majority  of  all  of  those  voting  at  the  election  is  required  to 
adopt  a constitutional  amendment.  These  states  are : Alabama,  Arkan- 
sas, Illinois,  Indiana,  Minnesota,  Mississippi,  Nebraska,  Oklahoma, 
Tennessee  and  Wyoming.  It  should  again  be  repeated,  however,  that 
in  Arkansas  and  Mississippi  an  amendment  initiated  by  popular  peti- 
tion may  be  adopted  by  a majority  voting  thereon,  and  in  Nebraska 
an  amendment  initiated  by  popular  petition  may  be  approved  by  an 
affirmative  vote  of  thirty-five  per  cent  of  those  voting  in  the  election. 

In  the  states  just  enumerated  the  amendment  of  constitutions 
has  been  particularly  difficult,  and  this  is  especially  true  where  the 
requirement  of  such  a popular  majority  has  coincided  with  other 
types  of  limitations  upon  the  amendment  of  the  constitution,  as  in 
Indiana  and  Illinois.  In  Illinois  there  have  been  relatively  few  votes 
upon  constitutional  amendments,  and  therefore  relatively  few  rejections 
bcause  of  the  great  difficulty  in  proposing  measures  in  the  first  place. 

The  requirement  that  a majority  voting  at  the  election  shall 
vote  in  favor  of  a proposition  in  effect  provides  that  all  abstinence  from 
voting  shall  be  treated  as  negative  voting,  and  it  has  often  proven 
impossible  to  obtain  even  upon  important  questions  an  affirmative  ma- 
jority of  the  total  vote  cast  in  general  elections.  In  states  requir- 
ing a majority  of  those  voting  at  the  election,  it  has  not  been  un- 
common to  submit  a proposed  amendment  at  frequent  intervals  in 
an  effort  to  obtain  the  required  majority.  In  Indiana  a proposal  per- 
mitting the  legislature  to  prescribe  qualifications  for  admission  to  the 
bar  was  submitted  to  the  people  in  1900,  1906  and  1910.  Upon  the 
first  submission  nearly  sixty  per  cent  of  the  voters  expressed  them- 
selves either  one  way  or  the  other  upon  this  proposal,  hut  in  subse- 
quent votes  very  few  voters  expressed  themselves,  apparently  be- 
cause of  the  feeling  that  voting  upon  constitutional  amendments  is  a 
waste  of  time  in  that  state. 

A Minnesota  proposal  concerning  the  investment  of  school  funds 
to  which  there  was  no  strong  opposition  was  submitted  at  three  suc- 
cessive elections  (1900,  1902  and  1904)  before  it  received  the  required 
vote.  Minnesota  has  had  a somewhat  similar  experience  with  other 
proposals.  In  the  Minnesota  elections  of  1912,  1914  and  1916  a num- 
ber of  proposed  constitutional  ^hiendments  failed  of  adoption,  al- 
though some  of  those  which  failed  in  each  of  these  elections  received 
very  nearly  half  of  the  total  vote  at  the  election.  The  same  situation 
has  presented  itself  in  the  other  states  having  this  requirement.  In 
Oklahoma  the  constitution  permits  the  submission  of  proposed  amend- 


194 


ments  at  special  elections,  and  a special  election  has  been  resorted 
to  in  at  least  one  case,  because  at  such  an  election  the  majority  of 
those  voting  at  the  election  is  of  course  substantially  equivalent  to  a 
majority  of  those  voting  upon  the  measure. 

The  great  difficulty  of  obtaining  for  a proposed  amendment  a 
majority  of  all  votes  cast  for  the  leading  candidates  at  the  same 
election  has  led  several  states  in  this  group  to  devise  methods  of 
evading  or  avoiding  the  difficulty  presented  by  their  constitutional  pro- 
visions. 

The  Alabama  constitution  of  1875  required  that  proposed  amend- 
ments be  submitted  at  a general  election,  and  that  in  order  to  be 
adopted  they  should  receive  the  vote  of  “a  majority  of  all  the  qualified 
electors  of  the  state  who  vote  for  representatives”.  The  legislature 
in  submitting  a proposed  amendment  to  the  people  in  1898  provided 
that  the  ballot  should  have  printed  on  it  the  words  ‘Tor  Birming- 
ham Amendment”  and  that  “any  elector  desiring  to  vote  for  said 
amendment  shall  leave  such  words  intact  upon  his  ballot  and  any 
elector  desiring  to  vote  against  such  amendment  shall  evidence  his 
intention  to  so  vote  by  erasing  or  striking  out  said  words  with  pen 
or  pencil.  The  leaving  of  said  words  upon  the  ballot  shall  be  taken 
as  a favorable  vote,  and  the  erasure  or  striking  out  of  said  words 
as  aforesaid  shall  be  taken  as  an  adverse  vote  upon  said  amendment”. 
Under  this  provision  the  amendment  was  carried.1 

Such  a plan  can  not  be  employed  under  the  Alabama  constitution 
of  1901.  Under  the  Alabama  plan  just  referred  to,  inaction  by  the 
voter  was  counted  as  an  affirmative  vote,  whereas  the  constitutional 
provision  without  such  an  arrangement  counts  inaction  in  the  nega- 
tive. A similar  ballot  was  employed  in  New  Jersey  in  1897. 

A Nebraska  statute  in  1901  provided  that  “a  state  convention 
of  any  political  party  may  take  action  upon  any  constitutional  amend- 
ment which  is  to  be  voted  upon  at  the  following  election,  and  said 
convention  may  declare  for  or  against  such  amendment,  and  such 
declaration  shall  be  considered  as  a portion  of  their  ticket.  . .”  Where 
a political  party  endorsed  a proposed  amendment,  such  endorsement 
was  to  be  printed  as  a portion  of  the  party  ticket,  and  a straight  party 
vote  was  counted  for  the  amendment ; and  in  the  same  manner  if 
the  party  action  were  against  the  amendment  a straight  party  vote 
would  be  counted  against  such  amendment.  In  enacting  a mandatory 
direct  primary  law  in  1907  the  Nebraska  law  required  party  action 
to  be  expressed  upon  proposed  amendments.  The  Nebraska  plan 
was  copied  by  Ohio  in  1902,  and  the  Ohio  law  continued  in  force 
until  1908,  when  it  was  repealed  for  political  reasons.  However, 
in  order  to  obtain  a majority  of  the  votes  at  the  election  upon  the  cal- 
ling of  a constitutional  convention  in  1910,  Ohio  adopted  the  same  plan. 
Indiana  has  also  provided  for  the  use  of  this  plan  in  certain  cases. 

What  the  Nebraska  plan  does  is  practically  what  was  done  in 
the  state  of  Illinois  before  the  official  ballot  act  of  1891.  Party  en- 
dorsements were  had  and  the  party  endorsement  printed  as  a part  of 
the  straight  party  ticket.  Voting  the  party  ticket  then  automatically 


1 May  & Thomas  Hardware  Co.  v.  Birmingham,  123  Ala.  306  (1908). 


195 


casts  a vote  upon  the  proposal,  and  all  voters  voting  such  a ticket  are 
counted  in  accordance  with  their  party’s  action. 

Such  a plan  is  of  course  merely  a subterfuge  which  results  in  the 
counting  in  the  affirmative  rather  than  in  the  negative  of  those  who 
will  not  or  do  not  take  sufficient  interest  to  vote  upon  a measure, 
provided  the  party  has  endorsed  the  measure. 

Such  a plan  is  possible  under  the  present  Illinois  constitution,  but 
it  seems  clearly  more  desirable  to  adopt  some  requirement  of  a popu- 
lar majority  that  can  actually  be  made  effective,  than  to  indulge  in 
subterfuges  for  the  purpose  of  counting  an  affirmative  majority  when 
none  actually  exists. 

The  experience  of  Illinois  seems  to  indicate  that  there  is  no 
material  difficulty  in  obtaining  an  affirmative  vote  upon  a measure  of 
forty  per  cent  of  those  voting  for  candidates,  although  some  ques- 
tions have  occasionally  not  received  so  large  a vote. 

If  proposed  amendments  are  to  be  submitted  at  a general  elec- 
tion and  some  proportion  of  the  total  vote  at  the  election  is  to  be  re- 
quired, it  would  be  unwise  to  adopt  a plan  of  requiring  that  a certain 
percentage  (say  two-thirds  or  seventy  per  cent)  shall  have  voted 
upon  the  question.  It  may  be  that  upon  a proposal  there  is  prac- 
tically no  negative  vote,  but  an  affirmative  vote  equal  to  one-half 
of  the  total  vote  cast  at  the  election.  The  total  vote  both  for  and 
against  may  not  equal  two-third  or  seventy  per  cent  but  the  popular 
will  has  been  clearly  expressed  by  a majority  of  the  total  vote  at  the 
election.  If  a plan  is  to  be  adopted  it  should  be  that  of  a proportion 
between  the  affirmative  vote  and  the  total  vote  cast.  So,  for  example, 
it  might  be  required  that  a measure  should  receive  a majority  of 
the  total  vote  cast  upon  its  adoption  or  rejection,  provided  such  major- 
ity equal  forty  per  cent  of  the  total  vote  cast  in  the  election. 


Use  of  the  Initiative:  Attention  has  already  been  called  to  the 
fact  that  in  fourteen  states  the  popular  initiative  may  be  used  for 
constitutional  amendments.  In  the  states  which  permit  the  use  of  this 
institution  160  amendments  have  been  proposed  by  a popular  petition 
and  of  these  58  were  adopted,  that  is  a percentage  of  36.25.  In  these 
same  states  within  the  same  period  185  constitutional  amendments 
were  proposed  by  the  legislature  of  which  81  were  adopted,  that  is, 
a percentage  of  43.78. 


Relation  between  the  constitution  and  statutes:  To  a large 

extent  the  distinction  in  substance  between  state  constitutions  and  state 
statutes  has  disappeared  through  the  practice  of  embodying  detailed 
legislative  enactments  into  the  constitutions.  Of  course  it  is  possible 
to  say  that  detailed  provisions  devised  to  meet  temporary  needs  are 
out  of  place  in  a constitution  and  should  not  be  put  there  at  all.  The 
fact  remains  however  that  most  constitutions  do  contain  detailed  pro- 


196 


visions.  So  long  as  constitutions  are  filled  with  matters  of  legisla- 
tive detail,  which  must  necessarily  be  subject  to  frequent  change,  a 
constitution  which  does  not  take  this  fact  into  consideration  and  make 
provision  for  such  change,  is  defective. 

Of  course,  even  matters  of  importance,  perhaps  properly  placed 
in  a constitution  at  one  time,  do  require  change,  and  an  amending 
clause  should  be  so  adjusted  as  to  permit  change  in  such  matters. 
However,  the  incorporation  into  a constitution  of  a large  amount  of 
legislative  detail  makes  essential  an  amending  process  which  may  be 
almost  as  easy  as  the  process  for  the  enactment  of  ordinary  legislation. 

The  increasing  detail  in  state  constitution  has  been  largely  re- 
sponsible for  the  disappearance  of  the  distinction  in  form  of  enact- 
ment between  statutes  and  constitutions  in  a number  of  states.  In 
1776  and  for  some  time  thereafter  a relatively  slight  difference  existed 
between  the  forms  of  constitutional  and  statutory  enactment.  The 
distinction  became  much  clearer  in  later  years,  and  toward  the  middle 
of  the  nineteenth  century  we  have  a well  defined  notion  that  state 
constitutions  should  not  be  easily  subject  to  change.  In  fact  this 
nation  went  much  too  far  and  resulted  in  the  tying  up  of  constitutional 
detail  in  such  a manner  as  seriously  to  hamper  further  progress. 

More  recently,  and  particularly  during  the  past  twenty  years, 
there  has  been  a tendency  to  weaken  quite  materially  the  distinction  in 
form  of  enactment  between  constitutions  and  statutes.  This  distinc- 
tion in  a number  of  states  has  disappeared  because  of  the  increased 
popular  participation  in  legislation  through  the  referendum.  In  the 
earlier  period  the  most  fundamental  distinction  between  statutes  and 
constitutional  amendments  was  that  amendments  were  required  to  be 
voted  upon  by  the  people,  while  statutes  were  infrequently  submitted 
to  a popular  referendum.  Twenty  states  now  have  constitutional  pro- 
visions for  an  initiative  and  referendum  upon  ordinary  legislation,  and 
two  states  a provision  for  the  referendum  upon  ordinary  legislation. 
The  constitutions  of  Oregon,  Nevada,  Missouri,  Arkansas,  Colo- 
rado and  Mississippi,  in  their  provisions  for  an  initiative  and  referen- 
dum, place  the  enactment  of  statutes  through  these  institutions  upon 
precisely  the  same  basis  as  the  adoption  of  constitutional  amendments, 
and  California  makes  very  little  distinction  between  the  two.  In  seven 
states  which  have  the  initiative  and  referendum,  distinctions  are  made 
between  the  use  of  the  initiative  for  constitutional  amendments  and 
its  use  for  ordinary  legislation.2 

In  state  constitutional  development  in  this  country  two  alterna- 
tives are  possible: 

(a)  That  of  practically  abolishing  the  distinction  in  content  be- 
tween the  state  constitution  and  ordinary  legislation,  placing  all  de- 
sired detail  in  the  constitution,  and  making  the  constitution  substant- 
ially as  easy  to  change  as  is  an  act  of  the  legislature. 

(b)  The  embodying  into  the  constitution  of  only  matters  of  more 
distinct  and  permanent  importance,  retaining  some  distinction  in  form 
of  enactment  between  the  constitution  and  statutes.  Of  course,  even 
under  this  latter  alternative  a relatively  easy  method  of  constitutional 


2 Arizona,  Massachusetts,  Michigan,  Nebraska,  North  Dakota,  Ohio,  Oklahoma. 


197 


amendment  may  be  desirable,  but  the  amending  methods  need  not  be 
so  easy  as  under  the  first  plan. 

It  may,  therefore,  be  said  that  the  determination  of  the  type  of 
amending  clause  rests  primarily  upon  the  determination  as  to  what 
type  of  constitution  is  to  be  adopted.  There  is  a distinct  advantage  in 
retaining  the  distinction  between  constitutions  and  statutes,  and  under 
our  constitutional  provisions  in  this  country  (except  in  Delaware)  a 
popular  vote  is  necessary  in  practically  all  cases  for  constitutional 
change.  To  increase  the  detail  in  the  constitution,  and  make  the  con- 
stitution subject  to  alteration  only  upon  a popular  vote  will,  therefore, 
increase  the  number  o'f  measures  upon  which  the  people  must  be  asked 
to  express  themselves,  and  whatever  may  be  said  in  favor  of  a power 
in  the  people  (through  popular  petition)  to  compel  the  submission  of 
legislative  or  other  proposals,  there  is  little  to  be  said  in  favor  of  a 
constitutional  compulsion  requiring  the  submission  to  the  people  of 
numerous  matters  of  relatively  small  importance. 


Conclusion:  In  the  State  of  Illinois  the  present  amending” 

method  is  generally  recognized  as  too  difficult.  In  1892  and  1896  pro- 
posals for  the  alteration  of  the  amending  clause  were  submitted  to  a 
popular  vote,  and  the  vote  upon  these  proposals  will  be  found  upon 
page  180  of  this  pamphlet.  One  of  the  proposals  was  rejected  by  vir- 
tue of  an  unfavorable  popular  majority ; the  other  failed  because  of  the 
small  amount  of  popular  vote  upon  it.  Reference  should  again  be 
made  to  the  fact  that  these  proposals  were  submitted  in  a period  when 
the  ballot  form  made  it  difficult  for  the  people  to  vote  upon  a proposed 
constitutional  amendment.  The  text  of  these  two  rejected  amendments 
is  printed  in  the  appendix  to  this  pamphlet. 

Attention  should  again  be  called  to  the  fact  that  in  this  and  other 
states  there  are  two  amending  or  revising  processes  for  constitutional 
change.  One  of  these  processes  is  cumbersome  and  difficult  of  opera- 
tion, and  should  be  reserved  only  for  extraordinary  occasions.  The 
other,  as  it  now  exists  in  Illinois  is  also  difficult  of  operation,  but  the 
simpler  method  of  constitutional  change  should  be  relatively  easy  of 
operation  and  should  be  employed  when  it  is  necessary  to  make 
specific  or  relatively  minor  changes  in  the  constitutional  text.  In 
framing  amending  clauses  for  a future  constitution,  particular  atten- 
tion should  be  directed  to  the  harmony  of  these  two  types  of  provi- 
sions. 

Recently  there  has  been  a tendency  to  use  constitutional  conven- 
tions for  the  purpose  of  proposing  a series  of  specific  constitutional 
amendments,  and  in  several  cases  conventions  have  submitted  a num- 
ber of  proposed  amendments  rather  than  a revised  constitution.  The 
Ohio  convention  of  1912  submitted  forty-two  proposed  amendments 
to  the  people.  All  constitutional  conventions  in  New  Hampshire  since 
1792  have  submitted  a series  of  proposals  each  of  which  might  be 
separately  accepted  or  rejected  by  the  voters.  The  Massachusetts  con- 
ventions of  1820,  1853  and  1917-19,  each  submitted  a series  of  pro- 


198 


posed  amendments.  The  convention  of  1917-19  submitted  twenty-two 
amendments  all  of  which  were  adopted.  A convention  continues  to 
be  needed,  however,  for  the  periodical  re-examination  of  a constitu- 
tion, and  if  the  changes  to  be  recommended  are  numerous,  those  not 
of  a controversial  character  may  more  properly  be  submitted  in  the 
form  of  a revised  constitution,  for  to  submit  each  change  separately 
(when  the  matter  is  one  over  which  there  is  no  controversy)  is  to 
burden  the  voter  unnecessarily. 

Attention  should  also  be  called  to  the  fact  that  the  type  of  amend- 
ing clause  to  be  placed  in  a constitution  depends  to  a large  extent  upon 
the  type  of  constitution  which  is  to  be  adopted.  Detail  in  a consti- 
tution is  undesirable,  but  detail  in  a constitution  is  all  the  more  unde- 
sirable if  it  is  coupled  with  an  amending  clause  which  makes  the 
amendment  of  such  detail  substantially  impossible. 

It  is  difficult  to  indicate  constitutional  provisions  from  other  states 
which  are  satisfactory  for  adoption  in  Illinois,  and  this  difficulty  is 
accentuated  by  the  fact  that  no  provision  can  be  suggested  as  de- 
sirable unless  it  is  first  known  what  type  of  constitution  is  to  be  in 
existence,  and  how  much  detail  is  likely  to  be  in  such  a constitution. 
The  New  York  and  Michigan  plans  with  respect  to  a constitutional 
convention  have  distinct  advantages,  for  in  many  states  difficulties 
have  presented  themselves  through  making  the  assembling  a con- 
stitutional convention  dependent  upon  legislative  action. 

In  an  appendix  to  this  study  are  printed  the  rejected  amendments 
of  1892  and  1894,  the  proposed  Chicago  Bar  Association  amendment 
to  the  amending  clause,  the  text  of  the  public  policy  questions  of  No- 
vember, 1919,  the  text  of  a proposal  by  the  Chicago  Woman’s  Club, 
and  the  full  text  of  the  amending  clause  of  the  Michigan  constitution. 

The  appendix  also  includes  a tentative  draft  of  a plan  for  the 
combination  of  legislative  proposal  and  popular  initiation  of  amend- 
ments. This  draft  combines  elements  of  rejected  proposals  in  Wis- 
consin and  Illinois,  and  is  presented  merely  in  order  that  the  various 
phases  of  the  subject  may  be  put  in  concrete  form.  For  the  indirect 
initiation  of  constitutional  amendments,  the  Wisconsin  plan  proceeds 
upon  the  assumption  that  there  will  be  no  difficulty  about  introducing 
a proposed  amendment  in  the  general  assembly.  A petition  for  the 
introduction  of  a proposed  amendment  seems  unnecessary  under  such 
a plan,  although,  if  it  were  desired,  the  two  methods  of  proposal  could 
be  adopted.  Other  types  of  the  initiative  in  use  for  the  proposal  of 
constitutional  amendments  will  be  found  in  the  appendix  to  Bulletin 
No.  2 on  the  initiative,  referendum  and  recall. 


APPENDIX. 


1.  The  Illinois  Constitution  of  1870,  Article  XIV : 

Sec.  1.  Whenever  two-thirds  of  the  members  of  each  house  of 
the  General  Assembly  shall,  by  a vote  entered  upon  the  journals 
thereof,  concur  that  a convention  is  necessary  to  revise,  alter  or 
amend  the  Constitution,  the  question  shall  be  submitted  to  the  electors 
at  the  next  general  election.  If  a majority  voting  at  the  election  vote 
for  a convention,  the  General  Assembly  shall,  at  the  next  session,  pro- 
vide for  a convention,  to  consist  of  double  the  number  of  members 
of  the  Senate,  to  be  elected  in  the  same  manner,  at  the  same  places 
and  in  the  same  districts.  The  General  Assembly  shall,  in  the  Act 
calling  the  convention,  designate  the  day,  hour  and  place  of  its 
meeting,  fix  the  pay  of  its  members  and  officers,  and  provide  for 
the  payment  of  the  same,  together  with  the  expenses  necessarily  in- 
curred by  the  convention  in  the  performance  of  its  duties.  Before  pro- 
ceeding, the  members  shall  take  an  oath  to  support  the  Constitution 
of  the  United  States  and  the  State  of  Illinois,  and  to  faithfully  dis- 
charge their  duties  as  members  of  the  convention.  The  qualification  of 
members  shall  be  the  same  as  that  of  members  of  the  Senate,  and 
vacancies  occurring  shall  be  filled  in  the  manner  provided  for  filling 
vacancies  in  the  General  Assembly.  Said  convention  shall  meet  within 
three  months  after  such  election  and  prepare  such  revision,  alteration 
or  amendments  of  the  Constitution  as  shall  be  deemed  necessary,  which 
shall  be  submitted  to  the  electors  for  their  ratification  or  rejection  at 
an  election  appointed  by  the  convention  for  that  purpose,  not  less  than 
two  or  more  than  six  months  after  the  adjournment  thereof ; and  un- 
less so  submitted  and  approved  by  a majority  of  the  electors  voting 
at  the  election,  no  such  revision,  alteration  or  amendments  shall  take 
effect. 

Sec.  2.  Amendments  to  this  Constitution  may  be  proposed  in 
either  house  of  the  General  Assembly,  and  if  the  same  shall  be  voted 
for  by  two-thirds  of  all  the  members  elected  to  each  of  the  two  housesr 
such  proposed  amendments,  together  with  the  ayes  and  nays  of  each 
house  thereon,  shall  be  entered  in  full  on  their  respective  journals, 
and  said  amendments  shall  be  submitted  to  the  electors  of  this  State 
for  adoption  or  rejection,  at  the  next  election  of  members  of  the 
General  Assembly,  in  such  manner  as  may  be  prescribed  by  law.  The 
proposed  amendments  shall  be  published  in  full  at  least  three  months 
preceding  the  election,  and  if  a majority  of  the  electors  voting  at 
said  election  shall  vote  for  the  proposed  amendments,  they  shall  be- 
come a part  of  this  Constitution.  But  the  General  Assembly  shall 
have  no  power  to  propose  amendments  to  more  than  one  article 
of  this  Constitution  at  the  same  session  nor  to  the  same  article  oftener 
than  once  in  four  years. 


200 


2.  Chicago  Bar  Association  Amendment : 

Amendments  to  this  Constitution  may  be  proposed  in  either 
house  of  the  General  Assembly,  and  if  the  same  shall  be  voted  for 
by  two-thirds  of  all  the  members  elected  to  each  of  the  two  houses, 
such  proposed  amendments,  together  with  the  ayes  and  nays  of  each 
house  thereon,  shall  be  entered  in  full  on  their  respective  journals; 
and  said  amendments  shall  be  submitted  to  the  electors  of  this  state 
for  adoption  or  rejection,  at  the  next  election  of  members  of  the 
General  Assembly  in  such  manner  as  may  be  prescribed  by  law. 
The  proposed  amendments  shall  be  published  in  full  at  least  three 
months  preceding  the  election,  and  if  a majority  of  the  electors  voting 
at  said  election  shall  vote  for  the  proposed  amendments,  they  shall 
become  a part  of  this  constitution.  But  the  General  Assembly  shall 
have  no  power  to  propose  amendments  to  more  than  five  articles  of 
the  constitution  at  the  same  session. 


3.  Public  Policy  Questions,  Nos.  1 and  2,  submitted  to  the  electors 

November  4,  1919 : 

“Question  No.  1 — Shall  the  members  of  the  Fifth  Constitutional 
Convention  be  instructed  to  submit  a proposal  for  the  Initiative  and 
Referendum;  the  term  Initiative  as  herein  used,  meaning  the  power 
to  bring  proposed  laws  and  Constitutional  Amendments  to  popular 
vote,  at  any  regular  election,  by  petition  of  100,000  electors  at  large, 
all  measures  so  submitted  to  become  laws  when  approved  by  a ma- 
jority of  those  voting  thereon ; the  term  Referendum,  as  herein  used, 
meaning  the  power  to  suspend  specified  act  or  acts  of  the  legislature, 
by  petition  of  50,000  electors  at  large,  until  such  act  or  acts  shall 
have  been  referred  to  popular  vote  and  approved  by  a majority  of 
those  voting  thereon ; said  powers  of  the  Initiative  and  Referendum 
also  to  be  understood  as  being  extended  by  the  Constitution  to  the 
electors  of  every  municipality  and  other  political  subdivision  or  dis- 
trict of  the  State,  and  to  apply  to  all  local,  special  and  municipal 
legislation,  in  or  for  their  respective  municipalities  and  sub-divisions 
or  districts? 

Question  No.  2 — Shall  the  members  of  the  Fifth  Constitutional 
Convention  be  instructed  to  submit  the  proposal  for  the  Initiative 
and  Referendum,  as  defined  in  Question  No.  1,  for  a separate  vote, 
in  such  manner  that  said  proposal,  if  approved  by  a majority  of  those 
voting  thereon,  shall  take  effect,  either  as  part  of  a new  constitution 
or  as  an  amendment  of  Article  4,  Section  1,  of  the  present  constitu- 
tion ?” 


4.  Proposal  of  the  Chicago  Woman’s  Club:1 

“1.  Whenever  [two-thirds]  (a  majority)' of  the  members  of  each 
house  of  the  General  Assembly  shall,  by  a vote  entered  upon  the 

1 Words  in  present  Article  XIV  to  be  deleted  are  in  brackets.  Words  to  be 
Inserted  are  in  parentheses. 


201 


journals  thereof,  concur  that  a convention  is  necessary  to  revise,  alter, 
or  amend  the  Constitution,  the  question  shall  be  submitted  to  the 
electors  at  the  next  general  election.  If  a majority  voting  [at  the 
election]  (thereon)  vote  for  a convention,  the  General  Assembly  shall, 
at  the  next  session,  provide  for  a convention,  to  consist  of  [double]  the 
(same)  number  of  members  [of]  (as)  the  Senate,  to  be  elected  [in  the 
same  manner]  (at  the  same  time),  at  the  same  places,  and  in  the  same 
districts.  The  General  Assembly  shall,  in  the  Act  calling  the  con- 
vention, designate  the  day,  hour,  and  place  of  its  meeting,  fix  the 
pay  of  its  members  and  officers,  and  provide  for  the  payment  of  the 
same,  together  with  the  expenses  necessarily  incurred  by  the  con- 
vention in  the  performance  of  its  duties.  Before  proceeding,  the 
members  shall  take  an  oath  to  support  the  Constitution  of  the  United 
States  and  the  State  of  Illinois,  and  to  faithfully  discharge  their 
duties  as  members  of  the  convention.  The  qualification  of  members- 
shall  be  the  same  as  that  of  members  of  the  Senate,  and  vacancies 
occurring  shall  be  filled  in  the  manner  provided  for  filling  vacancies 
in  the  General  Assembly.  Said  convention  shall  meet  within  three 
months  after  such  election  and  prepare  such  revision,  alteration,  or 
amendments  of  the  Constitution  as  shall  be  deemed  necessary  (which 
shall  be  published  by  the  Secretary  of  State  in  full  at  least  three 
months  before  the  election  at  which  they  are  to  be  voted  upon.) 
[which]  (They)  shall  be  submitted  to  the  electors  for  their  ratification, 
or  rejection  at  an  election  appointed  by  the  convention  for  that  purpose,, 
not  less  than  two  or  more  than  six  months  after  the  adjournment 
thereof;  and  [unless]  (each  such  revision,  alteration,  or  amendment) 
so  submitted  and  approved  by)  a majority  of  the  electors  voting" 
[at  the  election,  no  such  revision,  alteration  or  amendments  shall  take 
effect.]  (thereon,  shall  become  a part  of  this  constitution). 

2.  Amendments  to  this'  constitution  may  be  proposed  in  either 
house  of  the  General  Assembly,  and  if  the  same  shall  be  voted  for 
by  [two-thirds]  (a  majority)  of  all  the  members  elected  to  each  of  the 
two  houses,  such  proposed  amendments,  together  with  the  ayes  and 
nays  of  each  house  thereon,  shall  be  entered  in  full  on  their  respective 
journals,  and  said  amendments  shall  be  submitted  to  the  electors  of  this 
state  for  adoption  or  rejection,  at  the  next  election  of  members  of  the 
General  Assembly,  in  such  manner  as  may  be  prescribed  by  law.  The 
proposed  amendments  shall  be  published  (by  the  Secretary  of  State) 
in  full  at  least  three  months  preceding  the  election,  and  if  a majority 
of  the  electors  voting  [at  said  election]  (on  any  amendment)  shall, 
vote  for  [the  proposed]  (that)  amendment,  [they]  (it)  shall  become  a 
part  of  this  constitution.  But  the  General  Assembly  shall  have  no 
power  to  propose  amendments  [to  more  than  one  article  of  this  con- 
stitution at  the  same  session  nor]  to  the  same  article  oftener  than  once 
in  four  years. 

(3.  Amendments  to  this  constitution  may  also  be  proposed  by  pe- 
tition of  one-tenth  of  the  qualified  voters  of  this  State.  Every  such 
petition  shall  include  the  full  text  of  the  amendment  so  proposed  and 
be  signed  by  at  least  one-tenth  as  many  qualified  voters  of  the  State 
as  voted  at  the  preceding  general  election  for  State  Treasurer.  In- 


202 


itiative  petitions  proposing  an  amendment  to  this  constitution  shall  be 
filed  with  the  Secretary  of  State  at  least  four  months  before  the  elec- 
tion of  members  of  the  General  Assembly  at  which  election  such 
proposed  amendment  is  to  be  voted  upon.  Upon  receipt  of  such 
petition  by  the  Secretary  of  State,  he  shall  canvass  the  same  to  ascer- 
tain if  such  petition  has  been  signed  by  the  requisite  number  of  quali- 
fied electors,  and  if  the  same  has  been  so  signed,  the  proposed  amend- 
ment shall  be  published  by  the  Secretary  of  State  in  full  at  least  three 
months  preceding  the  election  and  submitted  to  the  electors  of  this 
State  for  adoption  or  rejection,  and  if  a majority  of  the  electors  voting 
on  such  an  amendment,  shall  vote  for  that  amendment,  it  shall  become 
a part  of  this  constitution.)” 


5.  Combination  of  the  initiative  and  the  legislative  proposal  of 

amendments  :* 

Section  1.  At  the  general  election  to  be  held  in  the  year  1938, 
and  every  twentieth  year  thereafter,  and  also  at  such  times  as  the 
General  Assembly,  by  a vote  of  two-thirds  of  all  the  members  elected 
to  each  of  the  two  houses,  with  the  yeas  and  nays  of  each  house  en- 
tered upon  the  journals  thereof,  shall  provide,  the  question  of  hold- 
ing a convention  to  revise,  alter  or  amend  the  constitution  shall  be  sub- 
mitted to  the  electors  of  the  state.  A convention  shall  be  held  if  a ma- 
jority voting  upon  the  question  vote  for  a convention,  provided  such 
majority  be  not  less  than  one-third  of  the  total  number  voting  at  the 
election  if  it  is  a general  election,  or  if  it  is  a special  election  provided 
such  majority  be  not  less  than  one-third  of  the  vote  cast  at  the  last  pre- 
ceding general  election.  If  the  electors  shall  decide  in  favor  of  a con- 
vention, the  General  Assembly  shall  at  the  next  session  provide  for  a 
convention  to  consist  of  double  the  number  of  members  of  the  Senate, 
to  be  elected  at  the  same  places  and  in  the  same  districts.  The  Gen- 
eral Assembly  shall,  in  the  act  calling  the  convention,  designate  the 
day,  hour  and  place  of  its  meeting,  fix  the  pay  of  its  members,  and  pro- 
vide for  the  payment  of  the  same  together  with  the  expenses  neces- 
sarily incurred  by  the  convention  in  the  performance  of  its  duties.  Be- 
fore proceeding,  the  members  shall  take  an  oath  to  support  the  con- 
stitutions of  the  United  States  and  of  the  State  of  Illinois,  and  to  dis- 
charge faithfully  their  duties  as  members  of  the  convention.  The 
qualifications  of  members  shall  be  the  same  as  that  of  members  of  the 
Senate,  and  vacancies  occurring  shall  be  filled  in  the  manner  provided 
for  filling  vacancies  in  the  General  Assembly.  Said  convention  shall 
meet  within  three  months  after  such  election,  and  prepare  such  revi- 
sion, alteration  or  amendments  of  the  constitution  as  shall  be  deemed 
necessary,  which  shall  be  published  in  full  within  two  weeks  after  the 
adjournment  of  the  convention  and  shall  be  submitted  to  the  electors 
for  their  ratification  or  rejection  at  an  election  appointed  by  the  con- 
vention for  that  purpose  not  less  than  two  nor  more  than  six  months 

2 New  matter  is  italicized.  That  not  italicized  is  present  language  of  Illinois 
Constitution. 


203 


after  the  adjournment  thereof.  Such  revision,  alteration,  or  amend- 
ments shall  he  adopted  upon  approval  by  a majority  of  the  electors 
voting  thereon , provided  such  majority  he  not  less  than  one-third  of 
the  total  number  voting  at  the  election  if  it  is  a general  election  or  if 
it  is  a special  election  provided  such  majority  he  not  less  than  one-third 
of  the  total  vote  cast  at  the  last  preceding  general  election;  and  any 
revision,  alteration  or  amendments  so  adopted  shall  take  effect  on  the 
first  day  of  January  next  after  such  approval,  unless  another  date 
shall  he  specified  in  the  revision,  alteration  or  amendment  itself. 

Section  2.  Amendments  to  this  constitution  may  be  proposed  in 
either  house  of  the  General  Assembly,  and  if  the  same  shall  be  voted 
for  by  two-thirds  of  all  the  members  elected  to  each  of  the  two  houses, 
such  proposed  amendments,  together  with  the  yeas  and  nays  of  each 
house  thereon  shall  be  entered  in  full  on  their  respective  journals. 

A petition  signed  by  qualified  electors  of  the  state  equal  to  ten 
percentum  of  the  votes  cast  for  governor  at  the  last  preceding  election 
(not  more  than  one-half  of  whom  shall  he  residents  of  any  one  county) 
may  require  the  submission  to  the  people  of  any  amendment  proposed 
in  either  house  of  the  general  assembly,  either  in  its  original  form  or 
with  any  amendments  proposed  in  either  house.  However  if  such  a 
proposed  amendment  shall  he  placed  upon  its  final  passage  in  each 
house  and  fails  in  either  house  to  receive  the  affirmative  votes  of  one- 
third  of  all  members  elected  to  such  house  it  shall  not  be  so  submitted. 
The  petition  shall  be  filed  with  the  secretary  of  state  within 

six  months  after  the  adjournment  of  the  General  Assembly, 

and  shall  contain  the  full  text  of  the  proposed  amendments 

whose  submission  is  required.  Petitions  shall  be  verified  by 

affidavits  of  those  obtaining  the  signatures.  The  Governor,  Attorney 
General  and  Secretary  of  State  shall  constitute  a board  to  pass  upon 
the  sufficiency  of  petitions,  and  zvhen  a petition  is  approved  by  them 
its  sufficiency  shall  not  be  questioned  in  any  court.  A finding  of  the 
board  that  a petition  is  not  sufficient  may  be  reviewed  upon  a petition 
for  mandamus  filed  in  the  Supreme  Court  within  thirty  days.  These 
provisions  are  self-executing,  but  the  General  Assembly  may  enact » 
appropriate  legislation  regulating  the  verification  of  signatures,  and 
other  matters  connected  with  the  preparation  and  presentation  of  pe- 
titions. 

Amendments  proposed  either  by  thq  General  Assembly  or  as  a ; 
result  of  popular  petition  in  the  manner  provided  above  shall  be  sub- 
mitted to  the  electors  of  this  state  for  adoption  or  rejection  at  the  next 
general  election,  unless  the  General  Assembly  by  a vote  of  two-thirds 
of  all  the  members  elected  to  each  of  the  two  houses  shall  order  a 
special  election  for  that  purpose.  The  proposed  amendments  shall  be 
submitted  in  such  manner  as  may  be  prescribed  by  law,  and  shall  be 
published  in  full  at  least  three  months  preceding  the  election.  If  a 
majority  of  the  electors  voting  thereon  shall  vote  for  the  proposed 
amendments,  they  shall  become  a part  of  this  constitution,  provided 
such  majority  be  not  less  than  one-third  of  the  total  number  voting  at 
the  election  if  it  is  a general  election,  or  if  it  is  a special  election,  pro-' 
vided  such  majority  be  not  less  than  one-third  of  the  total  vote  cast  at 


204 


the  last  preceding  general  election.  When  two  or  more  amendments 
are  submitted  at  the  same  election  they  shall  be  so  submitted  as  to  en- 
able the  electors  to  vote  upon  each  amendment  separately.  Every 
amendment  shall  take  effect  on  the  first  day  of  January  next  after  its 
approval,  unless  another  date  stiall  be  specified  in  the  amendment  it- 
self. No  amendment  submitted  to  and  approved  by  the  people  shall 
be  held  invalid  if  in  its  proposal  and  adoption  there  has  been  substan- 
tial compliance  with  the  terms  of  this  section. 


6.  Constitution  of  Michigan,  Article  XVII : 

Section  1.  Any  amendment  or  amendments  to  this  constitution 
may  be  proposed  in  the  senate  or  house  of  representatives.  If  the 
same  shall  be  agreed  to  by  two-thirds  of  the  members  elected  to  each 
house,  such  amendment  or  amendments  shall  be  entered  on  the  jour- 
nals, respectively,  with  the  yeas  and  nays  taken  thereon ; and  the 
same  shall  be  submitted  to  the  electors  at  the  next  spring  or  autumn 
election  thereafter,  as  the  legislature  shall  direct ; and,  if  a majority 
of  electors  qualified  to  vote  for  members  of  the  legislature  voting 
thereon  shall  ratify  and  approve  such  amendment  or  amendments,  the 
same  shall  become  part  of  the  constitution. 

Sec.  2.  Amendments  may  also  be  proposed  to  this  constitution 
by  petition  of  the  qualified  voters  of  this  state.  Every  such  petition 
shall  include  the  full  text  of  the  amendment  so  proposed  and  be  signed 
by  not  less  than  ten  per  cent  of  the  legal  voters  of  the  state.  Initiative 
petitions  proposing  an  amendment  to  this  constitution  shall  be  filed 
with  the  secretary  of  state  at  least  four  months  before  the  election 
at  which  such  proposed  amendment  is  to  be  voted  upon.  Upon  receipt 
of  such  petition/  by  the  secretary  of  state,  he  shall  canvass  'the 
same  to  ascertain  if  such  petition  has  been  signed  by  the  requisite  num- 
ber of  qualified  electors,  and  if  the  same  has  been  so  signed,  the 
proposed  amendment  shall  be  submitted  to  the  electors  at  the  next 
regular  election  at  which  any  state  officer  is  to  be  elected.  Any  con- 
stitutional amendment  initiated  by  the  people  as  herein  provided,  shall 
take  effect  and  become  a part  of  the  constitution  if  the  same  shall 
be  approved  by  a majority  of  the  electors  voting  thereon  and  not 
otherwise.  Every  amendment  shall  take  effect  thirty  days  after  the 
election  at  which  it  is  approved.  The  total  number  of  votes  cast  for 
governor  at  the  regular  election  last  preceding  the  filing  of  any  peti- 
tion proposing  an  amendment  to  the  constitution’  shall  be  the  basis 
upon  which  the  number  of  legal  voters  necessary  to  sign  such  a peti- 
tion shall  be  computed.  The  secretary  of  state  shall  submit  all  pro- 
posed amendments  to  the  constitution  initiated  by  the  people  for  the 
adoption  or  rejection  in  compliance  herewith.  The  petition  shall 
consist  of  sheets  in  such  form  and  having  printed  or  written  at  the 
top  thereof  such  heading  as  shall  be  designated  or  prescribed  by 
the  Secretary  of  State.  Such  petition  shall  be  signed  by  qualified  vot- 
ers in  person  only,  with  the  residence  address  of  such  persons  and 
the  date  of  signing  the  same.  To  each  of  such  petitions,  which  may 


205 


consist  of  one  or  more  sheets,  shall  be  attached  the  affidavit  of  the 
elector  circulating  the  same,  stating  that  each  signature  thereto  is 
the  genuine  signature  of  the  person  signing  the  same,  and  that  to  the 
best  knowledge  and  belief  of  the  affiant  each  person  signing  the  peti- 
tion was  at  the  time  of  signing  a qualified  elector.  Such  petition  so 
verified  shall  be  prima  facie  evidence  that  the  signatures  thereon  are 
genuine,  and  that  the  persons  signing  the  same  are  qualified  electors. 
The  text  of  all  amendments  to  be  submitted  shall  be  published  as  con- 
stitutional amendments  are  now  required  to  be  published.  (Amend- 
ment ratified  at  April  election,  1913). 

Sec.  3.  All  proposed  amendments  to  the  constitution  submitted 
to  the  electors  shall  be  published  in  full,  with  any  existing  provisions 
of  the  constitution  which  would  be  altered  or  abrogated  thereby,  and 
a copy  thereof  shall  be  posted  at  each  registration  and  election  place. 
Proposed  amendments  shall  also  be  printed  together  with  any  other 
special  questions  to  be  submitted  at  such  election  in  full  on  a single 
ballot  separate  from  the  ballot  containing  the  names  of  the  candidates 
or  nominees  for  public  office.  (Amendment  ratified  at  November 
election,  1918). 

Sec.  4.  At  the  general  election  to  be  held  in  the  year  nineteen 
hundred  twenty-six,  in  each  sixteenth  year  thereafter  and  at  such 
other  times  as  may  be  provided  by  law,  the  question  of  a general 
revision  of  the  constitution  shall  be  submitted  to  the  electors  qualified 
to  vote  for  members  of  the  legislature.  In  case  a majority  of  such 
electors  voting  at  such  election  shall  decide  in  favor  of  a convention 
for  such  purpose,  at  the  next  biennial  spring  election  the  electors  of 
each  senatorial  district  of  the  state  as  then  organized  shall  elect  three 
delegates.  The  delegates  so  elected  shall  convene  at  the  state  capitol 
on  the  first  Tuesday  in  September  next  succeeding  such  election,  and 
shall  continue  their  sessions  until  the  business  of  the  convention  shall 
be  completed.  A majority  of  the  delegates  elected  shall  constitute  a 
quorum  for  the  transaction  of  business.  The  convention  shall  choose 
its  own  officers,  determine  the  rules  of  its  proceedings  and  judge  of 
the  qualifications,  elections  and  returns  of  its  members.  In  case  of 
a vacancy  by  death,  resignation  or  otherwise,  of  -any  delegate,  such 
vacancy  shall  be  filled  by  appointment  by  the  governor  of  a qualified 
resident  of  the  same  district.  The  convention  shall  have  power  to 
appoint  such  officers,  employes  and  assistants  as  it  may  deem  neces- 
sary and  to  fix  their  compensation,  and  to  provide  for  the  printing 
and  distribution  of  its  documents,  journals  and  proceedings.  Each 
delegate  shall  receive  for  his  services  the  sum  of  one  thousand 
dollars  and  the  same  mileage  as  shall  then  be  payable  to  members 
of  the  legislature,  but  such  compensation  may  be  increased  by  law. 
No  proposed  constitution  or  amendment  adopted  by  such  convention 
shall  be  submitted  to  the  electors  for  approval  as  hereinafter  provided 
unless  by  the  assent  of  a majority  of  all  the  delegates  elected  to  the 
convention,  the  yeas  and  nays  being  entered  on  the  journal.  Any  pro- 
posed constitution  or  amendments  adopted  by  such  convention  shall  be 
submitted  to  the  qualified  electors  in  the  manner  provided  by  such 
convention  on  the  first  Monday  in  April  following  the  final  adjourn- 


206 


ment  of  the  convention ; but,  in  case  an  interval  of  at  least  ninety 
days  shall  not  intervene  between  such  final  adjournment  and  the  date 
of  such  election,  then  it  shall  be  submitted  at  the  next  general  election. 
Upon  the  approval  of  such  constitution  or  amendments  by  a majority 
of  the  qualified  electors  voting  thereon  such  constitution  or  amend- 
ments shall  take  effect  on  the  first  day  of  January  following  the 
approval  thereof. 


CONSTITUTIONAL  CONVENTION 


BULLETIN  No.  4 


State  and  Local  Finance 

Taxation,  Appropriation  and  Budget 
Methods,  State  and  Municipal 
Debts 


Compiled  and  Published  by  the 

LEGISLATIVE  REFERENCE  BUREAU 

Springfield,  Illinois 


[Printed  by  authority  of  the  State  of  Illinois.] 


LEGISLATIVE  REFERENCE  BUREAU. 


Governor  Frank  O.  Lowden,  Chairman. 
Senator  Edward  C.  Curtis,  Grant  Park. 
Senator  Richard  J.  Barr,  Joliet. 
Representative  Edward  J.  Smejkal,  Chicago. 
Representative  William  P.  Holaday,  Danville. 


E.  J.  Verlie,  Secretary. 

W.  F.  Dodd,  in  charge  collection  of  data  for 
constitutional  convention. 


TABLE  OF  CONTENTS. 


PAGE 

I.  Summary 215 

Taxation 215 

Budget  Methods 219 

State  and  Municipal  Debts 219 

II.  Historical  development  in  Illinois 220 

Constitution  of  1818 220 

Constitution  of  1848 221 

Proposed  Constitution  of  1862 222 

Constitution  of  1870 222 

Amendments 224 

Revenue  Legislation  since  1870 224 

III.  Judicial  decisions  on  taxation  in  Illinois 226 

Early  cases 226 

Intangible  property 226 

Commutation — License  fees 227 

Exemptions  228 

Inheritance  Tax 229 

Corporate  Authorities 230 

Local  Improvements 230 

IV.  Criticism  of  present  tax  system  in  Illinois 232 

Undervaluation 232 

Inequalities 233 

Intangible  property 235 

Special  Taxes 240 

Special  Assessments 240 

Uniformity  within  taxing  districts 241 

Tax  Sales  and  Redemptions 242 

Official  Criticisms 242 

V.  Proposed  constitutional  amendments  on  taxation 

IN  ILLINOIS 245 

Amendment  submitted  in  1916 246 


PAGE. 

VI.  Taxation  in  other  states 247 

Constitutional  Provisions  before  1800 247 

From  1800  to  1860 248 

From  1860  to  1900 248 

Since  1900 249 

Existing  Constitutional  Provisions 250 

Tax  Laws  and  their  Operation 251 

New  York 252 

Pennsylvania 253 

Maryland  255 

Massachusetts 255 

Iowa 256 

Kentucky 257 

Minnesota 258 

Wisconsin 259 

California 261 

VII.  Comments  and  conclusions  on  taxation  263 

Single  Tax 263 

Conclusions  265 

Suggested  Constitutional  Provisions 266 

VIII.  Appropriation  and  budget  methods 268 

The  Budget  Situation  in  Illinois 268 

Relation  of  Appropriations  to  Revenue 275 

Detailed  Provisions  regarding  methods  of  Appropriations 278 
Incurring  obligations  without  express  authority  of  law.  . 881 

Summary  on  conditions  in  Illinois 282 

Conditions  in  other  states 283 

Conclusions  286 

IX.  Constitutional  restrictions  on  public  debt 288 

State  Debt — In  Illinois 288 

Municipal  Debts  in  Illinois 289 

Judicial  Decisions 290 

Development  of  Constitutional  Restrictions 293 

Restrictions  on  State  Debts 296 

Restrictions  on  Municipal  Debts 299 

Conclusions  303 


PAGE. 

Appendix  no.  1.  References 304 

A.  Taxation  304 

B.  Appropriations  and  budget  methods 304 

C.  Debt  Limitations 305 

Appendix  no.  2.  Illinois  constitution,  Article  IX 306 

Appendix  no.  3. ' Constitutional  provisions  on  taxation  . . . 309 

A.  New  York  Constitution. 309 

B.  Pennsylvania  Constitution 309 

C.  Kentucky  Constitution 309 

D.  Maryland  Constitution • 311 

E.  South  Dakota  Constitution 311 

F.  Wisconsin  Constitution 311 

G.  Minnesota  Constitution 312 

H.  Ohio  Constitution 312 

I.  California  Constitution 313 

Appendix  no.  4.  Constitutional  provisions  on  budget 

methods  315 

A.  Illinois  Constitution 315 

B.  Maryland  Budget  Amendment  of  1916 318 

C.  Massachusetts  Budget  Amendment  of  1918 321 

Appendix  no.  5.  Budget  provisions  of  civil  administra- 
tive code  OF  ILLINOIS,  1917 322 

Appendix  no.  6.  Constitutional  provisions  on  debt  limits..  325 

A.  Illinois  Constitution 325 

B.  Oklahoma  Constitution 327 

C.  Ohio  Constitution 328 

D.  Pennsylvania  Constitution 328 

E.  North  Dakota  Constitution 330 


I.  SUMMARY 


Taxation.  The  first  state  constitution  of  Illinois  had  few  pro- 
visions relating  to  taxation  and  finance.  The  article  on  the  legislative 
department  contained  several  brief  sections  relating  to  revenue  bills 
and  appropriations.  A provision  in  the  Bill  of  Rights  laid  down  the 
uniform  rule  of  taxation  more  definitely  than  in  any  previous  state 
constitution.  In  practice  the  tax  laws  for  twenty  years  after  1818 
provided  a crude  system  of  classification  and  segregation,  but  a law 
of  1839  established  the  general  property  tax  in  full  force. 

In  the  state  constitution  of  1848  the  financial  provisions  were 
much  more  detailed.  The  uniform  rule  of  taxation  was  continued, 
with  additional  provisions  relating  to  poll  tax,  special  taxes,  exemp- 
tions, tax  sales  and  redemptions,  local  taxation,  state  appropriations 
and  restrictions  on  state  debt.  The  township  organization  law  of  1851 
and  a new  revenue  law  of  1853  decentralized  tax  administration,  and 
amplified  the  rules  for  the  assessment  of  property  with  specific  refer- 
ence to  intangible  property. 

In  the  constitution  of  1870  further  details  were  added.  Provisions 
relating  to  appropriations  and  state  debt  were  made  more  specific. 
The  article  on  Revenue  was  increased  from  six  to  twelve  sections,  with 
additional  provisions  as  to  special  taxes,  exemptions,  limitations  on 
municipal  debts  and  county  taxes,  and  for  special  assessments 
and  special  taxation  for  local  improvements.  Separate  sections  pro- 
hibit municipal  aid  to  private  corporations  and  state  aid  for  railroads 
and  canals. 

Constitutional  amendments  have  authorized  special  assessments  for 
drainage  districts,  the  Governor’s  veto  of  items  in  appropriation  bills 
and  additional  debt  for  the  city  of  Chicago  and  for  a deep  waterway. 

A new  revenue  law  of  1872  further  elaborated  the  rules  relating 
to  the  assessment  of  property  for  taxation  and  reorganized  the  State 
Board  of  Equalization  (established  in  1867).  Numerous  amendments 
and  additional  tax  laws  have  since  been  passed,  providing  for  an 
inheritance  tax,  increasing  the  powers  of  county  officers  in  the  work 
of  assessment,  recognizing  the  practice  of  undervaluation  and  changing 
the  basis  of  assessment,  limiting  local  tax  rates,  establishing  a state 
tax  commission,  and  increasing  the  license  taxes  on  corporations  and 
insurance  companies. 

Two  early  decisions  of  the  Supreme  Court  of  Illinois  upholding 
tax  laws  indicated  a liberal  construction  of  the  rule  of  uniformity  in 
taxation.  But  in  later  decisions  the  uniform  general  property  tax  has 
been  more  strictly  enforced,  not  alone  as  to  all  forms  of  tangible  prop- 
erty but  also  as  to  intangible  wealth,  such  as  stocks  and  bonds,  mort- 
gages and  other  securities  and  credits. 


216 


The  inheritance  tax  has  been  upheld ; and  also  special  taxes  author- 
ized by  section  1 of  Article  IX,  where  imposed  in  addition  to  the  gen- 
eral property  tax;  but  special  taxes  to  supersede  taxes  on  personal 
property  have  been  held  to  be  invalid. 

The  constitutional  enumeration  of  certain  classes  of  property 
which  may  be  exempted  from  taxation  has  been  held  to  be  an  exclu- 
sion of  all  other  subjects  of  taxation  and  a limitation  on  the  power 
of  the  General  Assembly  to  grant  other  exemptions. 

Provisions  for  vesting  local  authorities  with  power  to  tax  for 
corporate  purposes  have  been  held  to  limit  the  grant  of  local  taxing 
powers  to  locally  elected  municipal  officers,  or  officers  appointed  in  a 
manner  to  which  the  people  to  be  taxed  have  given  their  assent. 

The  provision  for  special  assessments  by  “cities,  towns  and  vi- 
lages”  was  held  to  prevent  the  grant  of  authority  to  levy  special  as- 
sessments by  drainage  districts ; a decision  which  led  to  the  adoption 
of  a constitutional  amendment  in  1878  authorizing  special  assessments 
by  such  districts.  But  it  has  been  held  that  park  boards  may  be 
vested  with  power  to  make  local  improvements  by  special  assessments. 

In  connection  with  the  provisions  as  to  local  improvements,  the 
Supreme  Court  has  held  that  such  improvements  involve  the  idea  of 
permanence ; that  special  assessments  and  special  taxation  may  not 
be  combined  for  the  same  improvement ; and  that  each  improvement 
must  be  wholly  within  the  limits  and  under  the  control  of  one  munici- 
pality. 

Criticism  of  the  present  system  of  taxation  in  Illinois  has  been 
long  continued  and  widespread,  relating  to  defects  in  administration, 
failure  to  meet  its  own  standard  of  uniformity,  and  injustice  in  the 
theory  of  the  general  property  tax.  More  specifically,  complaints  are 
made  of  the  general  undervaluation  of  property,  great  inequalities 
in  assessments,  and  the  escape  from  taxation  of  large  amounts  of 
property. 

A comparison  of  assessed  valuations  with  the  census  estimates 
of  the  true  value  of  tangible  property  shows  a steady  decrease  in  the 
percentage  of  true  value  assessed  from  1850  to  1890 ; and  while  there 
was  an  improvement  for  a time  after  1898,  there  has  been  a renewed 
decline  since  1904,  and  the  “full  value”  assessments  are  less  than  half 
of  the  census  estimates  of  true  value. 

It  is  further  clear  that  there  is  a great  degree  of  inequality  in  the 
degree  of  undervaluation  as  between  classes  of  property,  local 
districts  and  taxpayers.  Such  inequalities  appear  even  in  the  assess- 
ment of  real  estate,  as  between  different  counties,  and  as  between  farm 
lands  and  urban  lots.  So  long  as  real  estate  is  thus  underassessed,  the 
full  assessment  of  intangible  personalty  can  hardly  be  expected. 

More  striking  are  the  variations  in  the  assessment  of  personal 
property.  The  total  assessments  of  all  personal  property  in  1912 
were  only  31  per  cent  of  the  census  estimates  of  the  true  value  of 
tangible  personal  property,  as  compared  with  54  per  cent  for  real 
estate.  The  assessments  for  the  various  items  of  enumerated  per- 
sonal property  show  the  most  absurd  and  whimsical  variations,  both 
as  to  the  number  and  value  of  particular  items  in  different  taxing 


217 


districts.  It  seems  evident  that  in  practice  large  amounts  of  such 
property  are  not  included,  at  the  discretion  of  the  various  local  as- 
sessors. 

Improvement  in  the  assessment  of  real  estate  and  of  some  kinds 
of  tangible  personal  property  may  be  secured  by  more  efficient  methods 
of  administration,  under  the  new  State  Tax  Commission.  But  to 
exempt  a minimum  of  household  furniture,  or  to  provide  special 
methods  for  taxing  particular  classes  of  such  property  will  require 
changes  in  the  present  constitutional  provisions. 

The  most  Serious  evasions  of  the  present  tax  laws,  however,  are 
in  connection  with  the  assessment  of  intangible  wealth,  such  as  money, 
credits,  stocks  and  bonds.  A comparison  of  the  assessments  in  Cook 
county  and  other  counties  shows  that  the  assessments  for  most  of  the 
items  of  tangible  and  intangible  wealth  for  Cook  county  is  only  a 
small  fraction  of  that  for  the  rest  of  the  State.  On  the  other  hand 
about  half  of  the  total  assessment  for  personal  property  in  Cook 
county  is  under  the  heading  “all  other  property”,  which  probably 
includes  lump  sum  assessments  made  without  attempting  to  show  the 
various  items  in  the  schedule.  A comparison  of  the  assessments  for 
money  of  other  than  bankers  etc.,  with  individual  bank  deposits  as 
shown  in  bank  reports,  and  of  assessments  for  credits,  of  other  than 
bankers,  etc.,  with  estimates  of  the  true  value  of  taxable  mortgages 
indicates  that  such  money  and  credits  have  been  assessed  at  not  more 
than  one  third  as  much  of  their  true  value  as  real  estate,  and  in  recent 
years  at  not  more  than  one  fifth  as  much  as  real  estate. 

This  does  not  mean  that  there  is  a general  undervaluation  of 
intangible  wealth  in  this  proportion.  Some  intangible  property  is  as- 
sessed on  about  the  same  basis  as  real  estate,  and  some  (in  the  case 
of  estates  in  trust  or  in  probate)  may  be  assessed  at  its  true  value, 
and  hence  at  a relatively  much  higher  rate  than  is  real  estate.  On  the 
other  hand  a large  proportion  of  intangible  wealth  escapes  assess- 
ment and  taxation  altogether. 

These  difficulties  are  not  likely  to  be  overcome  by  any  changes  in 
methods  of  administration.  The  experience  of  other  states  confirms 
that  of  Illinois  as  to  the  impossibility  of  securing  the  full  assessment 
of  intangible  property  under  the  general  property  tax ; while  in  a num- 
ber of  other  states  special  taxes  on  mortgages  and  intangible  property 
or  on  incomes  have  secured  larger  revenues  from  intangible  property 
than  the  general  property  tax. 

Some  use  has  been  made  of  special  taxes  in  Illinois ; but  such 
taxes  will  not  be  utilized  fully  so  long  as  they  must  be  imposed  in 
addition  to  the  general  property  tax.  To  use  such  special  taxes  as  a 
partial  substitute  for  the  general  property  tax  will  require  changes  in 
the  .present  constitutional  provisions  for  the  uniform  taxation  of  all 
property. 

Some  difficulties  and  problems  have  been  raised  by  the  constitu- 
tional provisions  relating  to  special  assessments  and  special  taxation 
for  local  improvements,  under  the  decisions  of  the  Supreme  Court. 
Changes  in  the  constitutional  provisions  will  be  needed,  if  it  is  desired 


218 


to  extend  the  use  of  special  assessments  and  special  taxation  to  other 
municipal  corporations  than  cities,  towns,  villages,  park  districts  and 
drainage  districts ; to  permit  their  use  in  other  than  permanent  improve- 
ments ; to  allow  special  assessments  and  special  taxation  to  be  com- 
bined in  the  same  improvement;  or  to  authorize  such  methods  to  be 
used  for  improvements  to  be  carried  out  jointly  by  two  or  more 
municipal  corporations. 

The  requirement  of  uniformity  of  taxation  within  each  taxing 
district  has  also  caused  difficulties ; and  in  connection  with  the  limita- 
tions on  municipal  debts  has  forced  the  multiplication-  of  overlapping 
local  districts,  and  prevented  the  development  of  a satisfactory  system 
of  local  government. 

The  constitutional  provisions  relating  to  tax  sales  and  redemptions 
appear  to  prevent  legislation  to  eliminate  professional  tax  buyers. 

In  addition  to  complaints  and  criticisms  of  the  Illinois  tax  system 
by  private  individuals  and  associations,  there  have  also  been  similar 
criticisms  by  public  authorities.  A considerable  number  joi  proposed 
constitutional  amendments  have  been  introduced  in  the  General  As- 
sembly. Most  of  the  Governors  of  Illinois  have  called  attention  to 
defects  in  the  methods  of  taxation  and  have  strongly  urged  changes. 
A revenue  commission  appointed  in  1885  reported  a year  later,  calling 
attention  to  numerous  defects,  and  recommending  a new  revenue  law 
with  important  changes  in  methods  of  taxation  and  administration. 
The  State  Bureau  of  Labor  Statistics  made  two  extended  reports  on 
taxation,  one  in  1888  on  mortgages,  and  a more  comprehensive  investi- 
gation in  1894  with  recommendation  for  far-reaching  statutory  and 
constitutional  changes. 

A Special  Tax  Commission  authorized  in  1909  reported  two  years 
later,  recommending  a State  Tax  Commission  and  a system  of  county 
assessors,  and  also  a constitutional  amendment  to  authorize  classifica- 
tion of  personal  property.  The  principle  of  classification  was  indorsed 
by  a public  policy  vote  in  1912,  by  541,189  to  187,467. 

The  amendment  proposed  by  the  Special  Tax  Commission  was 
submitted  by  the  General  Assembly  in  1915  and  voted  on  in  1916.  It 
received  656,298  votes,  to  295,782  against;  but  was  held  by  the  Supreme 
Court  to  have  failed  of  adoption,  as  the  affirmative  vote  was  not  a 
majority  of  the  total  vote  cast  at  the  election. 

The  uniform  general  property  tax  treats  all  property  alike  and 
proved  satisfactory  at  the  time  it  was  first  adopted  in  this  country, 
because  at  that  time  there  were  no  great  variations  in  classes  of  prop- 
erty to  be  taxed.  With  the  great  development  of  intangible  wealth, 
this  tax  system  has  ceased  to  work  efficiently,  and  there  has  been  a 
steady  tendencydn  the  states  away  from  the  requirement  of  uniformity 
in  taxation.  This  tendency  has  been  most  decided  since  1900,  and  has 
resulted  in  the  adoption  of  numerous  constitutional  provisions,  either 
permitting  classification  of  property  or  authorizing  special  treatment 
of  incomes,  mortgages,  etc.  The  experience  of  other  states  under  more 
flexible  constitutional  provisions  indicates  that  more  revenue  is  derived 
from  intangible  wealth  by  other  methods  than  under  the  uniform  gen- 


219 


eral  property  tax.  As  has  been  remarked  by  the  United  States  Su- 
preme Court,  the  constitutional  rule  of  uniformity  is  now  not  a rule  of 
equality  but  rather  one  of  inequality. 


Budget  methods.  Until  recently  little  attention  has  been  paid 
in  this  country  to  financing  state  governments,  and  the  planning  both 
of  state  appropriations  and  of  the  state  revenue  has  been  largely  a 
hap-hazard  matter.  However,  thirty-nine  states  (including  Illinois) 
now  have  some  provision  for  a budget,  although  but  three  have  detailed 
provisions  about  this  matter  in  their  constitution.  The  Illinois  statu- 
tory provisions  for  a budget,  adopted  in  1917,  have  been  used  success- 
fully in  1919,  and  have  been  copied  in  several  other  states. 

There  are,  however,  a number  of  detailed  provisions  in  the  present 
constitution  regarding  appropriation  methods,  and  some  of  these  pro- 
visions now  make  difficulty.  Detailed  budgetary  provisions  in  a state 
constitution  are  unnecessary,  but  care  should  be  taken  to  make  sure 
that  existing  constitutional  provisions  do  not  interfere  with  the  adop- 
tion of  a satisfactory  state  financial  plan  by  the  General  Assembly. 


State  and  Municipal  Debts.  Limitations  upon  state  and  muni- 
cipal debts  are  found  in  practically  all  of  the  state  constitutions.  There 
has  in  recent  years  been  a tendency  to  relax  such  limitations.  This 
tendency  has  been  a result  of  a desire  to  have  governmental  agencies 
undertake  new  projects,  and  state  road  building  programs  have  been 
responsible  for  a number  of  constitutional  changes. 

The  most  striking  development  with  respect  to  municipal  debt 
limits  has  been  the  tendency,  indicated  particularly  by  provisions  in 
Michigan,  Ohio  and  New  York  to  exempt  income  producing  invest- 
ments of  cities  from  the  strict  limits  imposed  by  the  constitutions. 

With  respect  to  the  Illinois  debt  limitations,  two  matters  deserve 
special  comment:  (1)  The  Constitution  of  1848  permitted  a debt  of 

$50,000  to  meet  casual  deficits ; the  Constitution  of  1870  raised  this 
amount  to  $250,000.  In  view  of  present  state  expenditures,  the  ques- 
tion will  present  itself  of  still  further  increasing  this  amount.  (2)  The 
limitation  upon  municipal  debt  is  one  upon  each  separate  municipal 
corporation,  and  has  encouraged  the  practice  of  creating  additional 
municipal  corporations  within  a given  area,  in  order  to  obtain  in  this 
way  additional  borrowing  power. 


II.  HISTORICAL  DEVELOPMENT  IN  ILLINOIS 


Constitution  of  1818.  The  first  state  constitution  of  Illinois 
had  few  provisions  relating  to  taxation  and  finance.  Article  II  on  the 
legislative  department  contained  the  following: 

“Section  20.  No  money  shall  be  drawn  from  the  treasury  but  in 
consequence  of  appropriations  made  by  law.” 

“Section  21.  An  accurate  statement  of  the  receipts  and  ex- 
penditures of  the  public  money  shall  be  attached  to  and  published  with 
the  laws,  at  the  rising  of  each  session  of  the  General  Assembly.” 

“Section  32.  All  bids  for  raising  a revenue  shall  originate  in  the 
House  of  Representatives,  subject,  however,  to  amendment  or  rejec- 
tion as  in  other  cases.” 

More  novel  and  of  more  importance  was  the  following  provision 
in  the  Bill  of  Rights,  laying  down  the  uniform  rule  of  taxation : 

“Section  20.  That  the  mode  of  levying  a tax  shall  be  by  valu- 
ation, so  that  every  person  shall  pay  a tax  in  proportion  to  the  value  of 
the  property  he  or  she  has  in  his  or  her  possession.” 

No  previous  state  constitution  had  contained  so  sweeping  and 
positive  a statement  of  the  rule  of  uniformity  in  taxation ; though  pro- 
visions for  proportionate  taxation  had  been  adopted  in  the  first  constb 
tutions  of  Maryland  (1776),  Vermont  (1777)  and  Massachusetts 
(1780). 

In  actual  practice,  however,  the  taxes  then  in  use  in  Illinois,  which 
continued  for  twenty  years,  were  not  based  on  a uniform  system  of 
valuation,  but  on  a crude  classification.  There  was  a land  tax,  based 
on  an  arbitrary  classification  of  lands,  the  proceeds  of  which  were 
divided  between  the  state  and  the  counties,  the  state  receiving  the  tax 
from  lands  owned  by  non-residents.  There  was  also  a state  bank  tax, 
and  counties  were  authorized  to  levy  taxes  on  a few  specified  items  of 
tangible  personal  property.  Early  town  charters  provided  for  the 
taxation  of  town  lots,  exclusive  of  improvements ; but  later  town  taxes 
were  imposed  on  real  estate  (including  improvements),  and  still  later 
on  both  real  and  personal  property. 

The  tax  law  of  1839  established  the  general  property  tax  in  full 
force;  providing  for  the  assessment  of  real  estate  and  for  a long  list 
of  personal  property  items,  including  money  actually  loaned,  stock  of 
incorporated  companies,  and  “all  other  description  of  personal  prop- 
erty.” The  machinery  of  assessment  was  more  fully  developed  by  this 
law ; and  the  different  public  authorities  were  authorized  to  levy  taxes 
on  the  same  assessed  valuation.1 


1 R.  M.  Haig ; History  of  the  General  Property  Tax  in  Illinois. 


221 


Constitution  of  1848.  In  the  constitution  of  1848  more  atten- 
tion was  given  to  problems  of  finance,  including  appropriations,  debt 
limitation  and  taxation.  Article  III,  on  the  legislative  department 
included  the  following  provisions : 

“Section  22.  Bills  making  appropriations  for  the  pay  of  the 
members  and  officers  of  the  General  Assembly,  and  for  the  salaries  of 
the  officers  of  the  government,  shall  not  contain  any  provision  on  any 
other  subject.” 

Section  26  . contained  the  provisions  of  Sections  20  and  21  of 
Article  II  in  the  former  constitution,  with  the  additional  clause : “And 
no  person  who  has  been  or  may  be  a collector  or  holder  of  public 
moneys,  shall  be  eligible  to  a seat  in  either  House  of  the  General  As- 
sembly, nor  be  eligible  to  any  office  of  profit  or  trust  in  this  state,  until 
such  person  shall  have  accounted  for,  and  paid  into  the  treasury  all 
sums  for  which  he  may  be  accountable.” 

Section  37  required  the  General  Assembly  to  “provide  for  all 
appropriations  necessary  for  the  ordinary  and  contingent  expenses  of 
the  government  until  the  adjournment  of  the  next  regular  session, 
which  shall  not  be  increased  without  a two-thirds  vote,  nor  exceed  the 
revenues  authorized.  To  meet  casual  deficits,  debts  up  to  $50,000 
were  authorized;  but  no  other  debt  should  be  contracted  (except  for 
repelling  invasion,  suppressing  insurrection  or  defending  the  state  in 
war)  unless  approved  by  the  people  at  a general  election,  with  a law 
for  a tax  for  the  payment  of  interest. 

“Section  38.  The  credit  of  the  state  shall  not,  in  any  manner  be 
given  to  or  in  aid  of  any  individual,  association  or  corporation.” 

The  section  requiring  revenue  bills  to  originate  in  the  house  of 
representatives  was  omitted. 

In  addition  to  these  provisions,  a new  Article  (IX)  on  Revenue 
was  adopted  dealing  with  the  following  subjects: 

Section  1 authorized  a poll  tax.  Section  2 repeated  the  rule  of 
uniform  taxation,  with  the  addition  of  a clause  relating  to  assessors 
and  a clause  authorizing  taxes  on  an  enumerated  list  of  special  objects. 

Section  3 authorized  the  exemption  from  taxation  of  state  and 
county  property  and  property  deemed  necessary  for  school,  religious 
and  charitable  purposes.  Section  4 contained  detailed  provisions  as 
to  sales  of  property  for  unpaid  taxes  and  for  the  redemption  of  prop- 
erty so  sold.  Section  5 authorized  the  corporate  authorities  of  local 
districts  to  be  vested  with  power  to  assess  and  collect  taxes  for  cor- 
porate purposes,  subject  to  the  rule  of  uniformity.  Section  6,  provided 
that  the  specification  of  the  objects  and  subjects  of  taxation  shall  not 
deprive  the  General  Assembly  of  the  power  to  require  other  objects  or 
subjects  to  be  taxed,  in  such  manner  as  may  be  consistent  with  the 
principles  of  taxation  fixed  in  this  Constitution. 

Under  the  township  organization  law  of  1851,  a system  of  town 
assessors  and  collectors  was  established  in  counties  adopting  the  town- 
ship system.  A new  revenue  law  of  1853  amplified  the  rules  relating 
to  the  assessment  of  property,  providing  for  a schedule  of  fourteen 
items  of  personal  property,  including  intangible  property  such  as 
moneys,  credits,  investments  in  bonds,  stocks  and  joint  stock  com- 
panies. 


222 


Proposed  Constitution  of  1862.  In  the  proposed  constitution 
of  1862,  the  article  on  Revenue  was  continued,  containing  all  the  pro- 
visions in  Article  IX  of  the  Constitution  of  1848,  and  three  new  sec- 
tions as  follows : 

Section  6 provided  that  all  taxes  should  be  collected  by  the  same 
person.  Section  8 required  the  General  Assembly  to  provide  that  all 
taxes  and  assessments  should  be  due  and  paid  on  a certain  day.  Sec- 
tion 9 provided  that  the  General  Assembly  should  levy  a uniform  tax 
on  bank  circulation. 

In  the  article  on  the  legislative  department  the  financial  provisions 
in  the  corresponding  article  in  the  constitution  of  1848,  were  continued 
with  some  additions.  Municipalities,  as  well  as  the  state,  were  pro- 
hibited from  loaning  their  credit  or  subscribing  to  the  stock  of  corpora- 
tions or  associations;  and  the  general  assembly  was  prohibited  from 
modifying  the  terms  of  the  Illinois  Central  Railroad  charter.2 


Constitution  of  1870.  In  the  Constitutional  Convention  of 
1869-70,  provisions  relating  to  taxation  and  finance  were  reported  by 
four  different  committees, — legislative  department,  revenue,  state  and 
local  indebtedness  and  municipal  corporations.  The  main  discussion 
took  place  in  connection  with  sections  relating  to  revenue  from  the 
Illinois  Central  Railroad  and  prohibiting  municipal  corporations 
from  loaning  their  credit  or  subscribing  to  stock  (both  of  which  were 
submitted  separately  and  adopted),  and  one  authorizing  special  tax- 
ation for  local  improvements. 

In  the  revised  constitution  there  were  a number  of  changes,  some 
by  omission  of  former  provisions,  and  more  by  addition.  In  Article 
IV  on  the  Legislative  Department,  provisions  relating  to  appropriations 
and  state  debt  were  brought  together  in  sections  16-21  and  33.  Sec- 
tion 16  contained  the  provisions  of  section  22  of  Article  IV  of  the 
former  constitution,  with  a new  provision  that : “The  General  As- 

sembly shall  make  no  appropriation  of  money  out  of  the  treasury  in 
any  private  law.” 

Section  17  made  some  changes  from  Section  26  of  Article  III  of 
the  former  constitution.  An  Auditor’s  warrant  is  required  for  draw- 
ing money  from  the  Treasury;  and  a statement  of  money  expended  at 
the  session  of  the  General  Assembly  is  required  in  place  of  the  former 
“statement  of  the  receipts  and  expenditure  of  the  public  money.”  The 
laist  - clause  in  Section  26  relating  to  the  ineligibility  of  defaulting 
officers  was  included  in  Section  4 of  Article  IV. 

Section  18  made  some  changes  from  Section  37  of  Article  III  of 
the  former  constitution.  Appropriations  by  each  General  Assembly 
are  to  cover  the  necessary  expenses  “until  the  expiration  of  the  first 
fiscal  quarter  after  the  adjournment  of  the  next  regular  session.”  The 
amount  of  state  debt  permitted  to  meet  casual  deficits  was  increased  to 
$250, 000.3 

2 Proposed  Constitution  of  1862,  Art.  IV,  Secs.  35,  38. 

3 A provision  requiring-  appropriations  to  be  made  by  a general  law  was 
agreed  to  in  Committee  of  the  Whole,  but  was  not  reported  to  the  Conven- 
tion. Proceedings  and  Debates,  I. 


223 


Section  19  (new)  prohibits  retrospective  appropriations  for  serv- 
ices or  claims  under  any  agreement  not  authorized  by  law,  except  for 
expenditures  incurred  in  suppressing  insurrection  or  repelling  invasion. 

Section  20  extended  the  prohibition  on  loaning  the  credit  of  the 
state  (Section  38,  Article  III  in  Constitution  of  1848)  to  assuming  the 
debts  of  any  corporation,  association  or  individual. 

Section  21  (corresponding  to  Section  24  of  Article  III  in  Consti- 
tution of  1848)  provides  that  the  compensation  of  members  of  the 
General  Assembly  shall  be  prescribed  by  law,  but  no  change  may  be 
made  during  their  term ; and  limits  other  allowances  to  $50  per  session. 

Section  33  of  Article  IV  (new),  limited  appropriations  for  the 
new  state  house  to  a total  of  $3,500,000  without  a vote  of  the  people. 

Article  IX  on  Revenue  was  increased  from  six  to  twelve  sections. 
The  changes  made  are  noted  in  the  following  analysis : 

Section  1 of  the  former  article  authorizing  a poll  tax  was  omitted. 

Section  1 in  the  Constitution  of  1870  corresponds  to  Section  2 
of  the  former  constitution,  reaffirming  the  rule  of  uniformity  and 
adding  to  the  list  of  objects  and  subjects  of  special  taxation — “liquor 
dealers,  insurance,  telegraph  and  express  interests  or  business,  vendors 
of  patents  and  corporations  owning  or  using  franchises  or  privileges”, 
with  a further  qualification  that  all  such  special  taxes  shall  be  “by 
general  law,  uniform  as  to  the  class  upon  which  it  operates”. 

Section  2 in  the  new  constitution  is  the  same  as  Section  6 in  the 
constitution  of  1848. 

Section  3 added  to  authorized  exemptions,  property  used  exclu- 
sively for  agricultural  and  horticultural  societies  and  for  cemetery 
purposes,  required  exemptions  to  be  made  by  general  law,  and  pro- 
vided that : “In  the  assessment  of  real  estate  encumbered  by  public 

easement,  any  depreciation  occasioned  by  such  easement  may  be  de- 
ducted in  th.e  valuation  of  such  property”. 

Sections  4 and  5 relating  to  tax  sales  and  redemptions  took  the 
place  of  the  more  detailed  provisions  in  section  4 of  the  former  con- 
stitution. 

Section  6 (new)  prohibits  the  General  Assembly  from  releasing 
local  districts  from  state  taxes,  or  any  commutation  for  such  taxes. 

Section  7 (new)  provides  that  “all  taxes  levied  for  state  purposes 
shall  be  paid  into  the  state  treasury”. 

Section  8 (new)  establishes  a limitation  on  county  taxes  of  75 
cents  per  $100.,  except  for  debt  existing  at  the  adoption  of  this  con- 
stitution, unless  authorized  by  a vote  of  the  people  of  the  county. 

Sections  9 and  10  take  the  place  of  section  5 in  the  former  con- 
stitution. The  General  Assembly  is  specifically  authorized  to  vest 
the  corporate  authorities  of  cities,  towns  and  villages  with  power  to 
make  local  improvements  by  special  assessment,  or  by  special  taxation 
of  contiguous  property,  or  otherwise”.  The  provision  for  corporate 
taxation  under  the  uniform  rule  is  extended  to  “all  municipal  cor- 
porations”.. The  General  Assembly  is  prohibited  from  imposing  taxes 
on  municipal  corporations  for  corporate  purposes ; and  private  prop- 
erty is  declared  not  liable  for  the  debts  of  municipal  corporations. 


224 


Section  11  (new)  repeats  with  reference  to  municipal  officers 
provisions  of  other  parts  of  the  constitution  as  to  the  ineligibility  of 
defaulting  officers,  and  prohibits  the  increase  and  decrease  of  compen- 
sation during  the  term  of  officers  elected  or  appointed  for  a definite 
term. 

Section  12  (new)  establishes  a limit  to  the  debt  of  municipal 
corporations  of  five  per  cent  of  the  assessed  valuation  of  taxable  prop- 
erty, and  requires  a tax  to  pay  interest  and  the  principal  within  twenty 
years,  with  exception  for  bonds  voted  by  the  people  in  pursuance  of 
law  prior  to  the  adoption  of  this  constitution. 

In  addition  to  the  provisions  in  the  main  constitution,  three  other 
sections,  separately  submitted  and  all  adopted,  related  to  financial 
questions. 

Section  1 provided  that  the  contract  liability  of  the  Illinois  Cen- 
tral Railroad  Co.  shall  never  be  altered  or  remitted ; and  that  the 
money  derived  from  the  company,  after  payment  of  the  state  debt, 
shall  be  applied  to  the  ordinary  expenses  of  the  state. 

Section  2 prohibited  any  municipal  corporation  from  subscribing 
to  stock  or  loaning  its  credit  to  railroad  or  private  corporations,  un- 
less voted  under  authoirty  of  law  before  the  adoption  of  the  consti- 
tution. 

Section  3 required  a popular  vote  to  authorize  the  sale  or  lease 
of  the  Illinois  and  Michigan  Canal;  and  prohibited  the  loan  of  state 
credit  or  appropriations  in  aid  of  railroads  or  canals,  except  that  sur- 
plus earnings  of  any  canal  or  water  power  might  be  appropriated  for 
its  enlargement,  maintenance  or  extension. 


Amendments.  By  an  amendment  to  Section  31  of  Article  IV, 
adopted  in  1878,  the  corporate  authorities  of  drainage  districts  may  be 
vested  with  power  to  make  special  assessments  on  propertly  benefited. 

An  amendment  to  Section  16  of  Article  V,  adopted  in  1884,  ex- 
tended the  Governor’s  veto  to  items  or  sections  of  appropriation  bills. 

An  amendment  to  Article  IX,  adopted  in  1890,  added  section  13, 
authorizing  the  city  of  Chicago  to  issue  $5,000,000.  in  bonds  on 
account  of  the  World’s  Columbian  Exposition. 

An  amendment  to  separate  section  3,  adopted  in  1908  authorized 
the  construction  of  a deep  waterway  from  Lockport  to  Utica,  and  the 
issue  of  bonds  not  to  exceed  $20,000,000  for  such  construction. 


Revenue  Legislation  since  1870.  A new  revenue  law  was 
enacted  in  1872,  which  still  forms  the  basis  of  the  present  system  of 
assessment  and  collection  of  taxes.  This  act  further  elaborated  the 
rules  for  listing  and  valuing  property,  increasing  the  number  of  items 
of  personal  property  required  to  be  scheduled.  It  provided  for  the 
review  and  equalization  of  original  local  assessments  by  the  county 


225 


board;  and  it  reorganized  the  State  Board  of  Equalization  (established 
in  1867),  and  added  to  its  authority  that  of  assessing  railroad  prop- 
erty and  the  stock  of  Illinois  corporations. 

Numerous  amendments  to  the  act  of  1872  and  other  laws  re- 
lating to  taxation,  have  been  passed  from  time  to  time.  The  more 
important  of  these  have  been  the  following: 

An  Act  of  1895  to  tax  gifts,  legacies  and  inheritances,  amended 
in  1909  and  at  other  times. 

An  Act  of  1898  making  some  important  changes  in  the  methods 
of  assessing  property,  especially  in  Cook  County.  This  act  did  away 
with  town  assessors  and  collectors  in  the  city  of  Chicago,  and  provided 
a Cook  County  board  of  assessors  and  board  of  review ; it  increased 
the  powers  of  all  county  treasurers  as  supervisors  of  assessments,  and 
reorganized  and  increased  the  powers  of  county  boards  of  review.  It 
also  recognized  the  practice  of  undervaluation  in  the  assessment  of 
property  by  providing  that  the  taxable  value  should  be  one-fifth  of  the 
“full  value”. 

An  Act  of  1901,  (the  Juul  law)  which  has  been  frequently 
amended,  established  a general  limitation  on  the  aggregate  tax  rates, 
and  for  the  reduction  of  rates  over  the  limit. 

An  Act  of  1909  provided  for  an  increase  in  the  taxable  value  of 
property  from  one-fifth  to  one-third  of  the  full  value.  In  1919,  a 
further  increase  to  one-half  was  made.  These  changes  were  made  to 
enlarge  the  borrowing  power  of  municipalities  under  the  constitu- 
tional debt  limit ; and  in  each  case  corresponding  reductions  were  made 
in  the  authQrized  tax  rates  of  local  authorities. 

An  Act  of  1917  abolished  town  collectors;  and  placed  the  col- 
lection of  taxes  entirely  in  the  hands  of  the  county  treasurers. 

Acts  of  1919  abolished  the  large  elective  State  Board  of  Equaliza- 
tion, and  provided  for  a State  Tax  Commission  of  three  members, 
appointed  by  the  Governor;  and  established  an  increased  scale  of 
license  taxes  on  corporations  and  insurance  companies. 


226 


III.  JUDICIAL  DECISIONS  ON  TAXATION 


Early  cases.  Two  decisions  of  the  Supreme  Court  of  Illinois, 
under  the  rule  of  uniform  taxation  as  laid  down  in  the  first  state  con- 
stitution, indicated  a liberal  construction  of  the  rule. 

In  Sawyer  v.  the  City  of  Alton  (1841)  it  was  held  that  the  con- 
stitutional provision  for  uniformity  did  not  prevent  a poll  or  capita- 
tion tax  or  a law  requiring  labor  service  on  roads. 

“We  are  of  opinion  the  framers  of  the  constitution  intended  to 
direct  a uniform  mode  of  taxation  on  property,  and  not  to  prohibit 
any  other  species  of  taxation,  but  to  leave  the  legislature  the  power 
to  impose  such  other  taxes  as  would  be  consonant  to  public  justice, 
and  as  the  circumstances  of  the  county  might  require.  They  prob- 
ably intended  to  prevent  the  imposition  of  an  arbitrary  tax  on  property, 
according  to  kind  or  quantity,  and  without  reference  to  value.  The 
inequality  of  that  mode  of  taxation  was  the  object  to  be  avoided.  We 
cannot  believe  they  intended  that  all  the  public  burdens  should  be 
borne  by  those  having  property  in  possession,  wholly  exempting  the 
rest  of  the  community  who,  by  the  same  constitution  were  made 
secure  in  the  exercise  of  the  rights  of  suffrage,  and  all  the1  immunities 
of  the  citizen.”1 

In  Rinehart  v.  Schuyler,  et.  al.  (1845)  it  was  held  that  the  reve- 
nue laws  from  1823  to  1829  were  not  unconstitutional  because  they 
provided  for  the  classification  of  lands  at  specific  valuations  named  in 
the  law.  It  was  maintained  that  the  system  of  valuation  and  classifi- 
cation was  the  most  equitable  and  convenient,  and  that  a valuation 
of  the  lands  by  personal  examination  and  inspection  would  not  only 
have  been  inconvenient  and  expensive,  but  absolutely  impracticable.2 

But  in  later  decisions  the  rule  of  uniformity  has  been  more 
strictly  enforced,  and  applied,  not  only  as  to  all  forms  of  tangible 
property,  but  also  to  intangible  wealth  in  the  form  of  stocks  and  bonds, 
mortgages  and  other  securities,  and  credits. 


Intangible  property.  The  taxation  of  credits  and  intangible 
rights  as  property  has  been  upheld.  In  the  case  of  Trustees  etc.  v. 
McConnell3  it  was  held  that  money  loaned  was  a subject  of  taxation. 
In  the  case  of  People  v.  Rhodes,  it  was  held  that  notes  for  money  due 
for  land  sold  by  contract,  was  a proper  subject  of  taxation,  as  well 

1 Sawyer  v.  The  City  of  Alton,  4 111.  127.  129  (1841). 

2 Rinehart  v.  Schuyler  et  al.,  7 111.  473,  505,  511  (1845). 

3 12  111.  158  (1850V 


227 


as  the  land  the  title  to  which  was  still  held  as  security  for  the 
purchase  money.4 

In  People  v.  Worthington,  it  was  held  that  the  legislature  had 
the  right  to  tax  notes  and  credits  secured  by  mortgage  on  lands  sold. 

“The  word  property  is  not  alone  used  in  our  language  to  denote 
tangible  things,  but  is  properly  applied  to  denote  intangible  rights  of 
value.  One  may  have  a property  in  a patent  right  or  a copyright, 
which  is  as  much  ideal  as  is  a right  of  action.  We  may  safely  assume 
that  it  was  the  policy  of  the  convention  which  framed  this  clause  of 
the  constitution,  that  each  person  pay  a direct  tax  in  proportion  to 
the  pecuniary  interests  which  he  has  in  the  state,  and  to  be  protected 
and  defended  by  the  laws.”5 

But  the  fact  that  certain  credits  and  deductions  are  allowed  in 
the  assessment  of  personal  property  does  not  establish  a want  of  uni- 
formity.6 

It  has  further  been  held  that  the  franchise  of  a corporation  is 
property  which  has  value  that  can  be  estimated ; and  that  there  is 
nothing  illegal  or  unjust  in  a rule  of  the  state  board  of  equalization 
that  to  value  the  stock  and  franchise  of  incorporated  companies,  the 
fair  cash  value  of  the  capital  stock  be  added  to  the  fair  cash  value  of 
the  debts  of  the  company,  except  the  debt  for  current  expenses.7 

In  the  so-called  Teachers’  Federation  case,  the  state  board  of 
equalization  was  required  by  mandamus  to  assess  the  capital  stock  of 
public  utility  corporations,  but  the  Supreme  Court  of  the  United 
States  held  that  the  assessment  should  be  made  on  the  same  basis  as 
that  of  other  corporations  of  the  same  class.8 

To  secure  the  uniformity  required  by  the  constitution,  it  has  been 
held  that  two  things  are  essential : 

“First,  the  assessments  shall  be  just  and  equal,  in  proportion  to  the 
value  of  the  property  liable  to  assessment ; and  secondly,  when  thus 
assessed,  the  rate  shall  be  uniform  as  to  every  person,  and  on  every 
species  of  property  returned  by  the  assessor  for  taxation”.9 

But,  in  the  case  of  the  First  National  Bank  of  Urbana  v.  Holmes, 
it  was  held  that  where  bank  shares  were  assessed  on  the  same  basis 
as  other  personal  property,  but  at  a higher  percentage  of  true  value  than 
real  estate,  there  was  no  equitable  right  to  have  the  valuation  of  bank 
shares  reduced.10 


Commutation-License  Fees.  Under  the  first  state  constitu- 
tion, it  was  held  that  an  exemption  of  the  State  Bank  of  Illinois  from 
all  taxation  in  consideration  of  the  payment  of  one-half  per  cent  on 
their  capital  stock  was  valid  and  constitutional.11 

4 15  111.  304  (1853). 

5 People  v.  Worthington,  21  111.  170  (1859). 

6 Edwards  v.  People,  88  111.  340  (1878). 

7 Ottawa  Glass  Co.  v.  McCaleb,  81  111.  556  (1876).  Porter  v.  Rockford,  R.  I. 
& St.  L.  R.  Co.  76  111.  561  (1875). 

8 State  Board  of  Equalization  v.  People,  191  111.  528  (1901);  Raymond  v. 
Chicago  Union  Tr.  Co.,  207  U.  S.  20  (1907). 

9 Sherlock  v.  Village  of  Winnetka,  68  111.  530  (1873). 

10  First  National  Bank  of  Urbana  v.  Holmes,  246  111.  362  (1910). 

11  State  Bank  v.  People,  4 Scam.  303  (1843). 


228 


Under  the  constitution  of  1848,  it  was  also  held  that  the  state 
could  commute  state  and  local  taxes  for  a percentage  of  earnings  paid 
to  the  state  treasury,  and  could  commute  taxes  for  an  equivalent 
burden.12 

It  has  also  been  held  that  the  constitutional  provision  in  reference 
to  taxation  has  no  application  to  fees  exacted  for  a license. 

“The  constitution  has  not  prohibited  the  general  assembly  from 
imposing  or  authorizing  the  imposition  of  the  duty  to  procure  a license 
to  pursue  any  calling,  nor  has  it  limited  the  power  or  limited  its 
exercise.”13 

More  recently,  it  has  been  held  that  a state  license  tax,  under  the 
list  of  special  objects  of  taxation  in  Section  1 of  Article  IX,  was  not 
valid,  where  it  was  provided  that  this  should  supersede  taxes  on  per- 
sonal property.  But  such  special  taxes  are  valid  where  imposed  in 
addition  to  the  general  taxes  on  property.14 


Exemptions.  The  enumeration  (in  section  3 of  Article  IX) 
of  certain  classes  of.  property  which  may  be  exempted  from  taxation 
is  an  exclusion  of  all  other  subjects  of  exemption  and  a limitation  upon 
the  power  of  the  General  Assembly  to  exempt  any  other  property. 

“Under  Section  1 of  Article  IX  of  the  Constitution  we  think  it  is 
plain  that  the  burdens  of  taxation  were  intended  to  be  cast  equally 
upon  all  the  property  of  the  State,  of  every  description.  Where 
revenue  was  needed  a tax  is  required  to  be  levied,  on  a valuation,  so 
that  every  person  and  corporation  shall  be  required  to  pay  a tax  in 
proportion  to  the  value  of  his,  her,  or  its  property.  Uniformity  of 
taxation  on  all  property  was  the  cardinal  principle  of  that  section  of 
the  Constitution,  and  had  it  not  been  for  the  adoption  of  Section  3 of 
Article  IX,  the  Legislature  would  have  had  no  power,  in  any  case,  to 
enact  a law  exempting  any  property  from  taxation”.15 

“If  there  is  an  exemption  of  property  within  the  classes  enum- 
erated in  the  constitution,  it  must  be  by  general  law,  but  authority  is 
denied  to  the  legislature  by  the  constitution  to  exempt  any  property 
except  that  which  is  enumerated,  by  any  form  of  legislation,  general 
or  special.  Any  exemption  from  the  rule  of  equality  established  by 
Section  1 of  Article  IX  outside  of  the  kinds  of  property  enumerated  in 
Section  3 of  that  article  is  absolutely  prohibited”.16 

Thus  it  has  been  held  that  the  legislature  cannot  exempt  property 
of  religious  or  charitable  institutions  held  for  profit,  nor  the  property 
of  schools  not  used  for  school  purposes,  nor  parsonages  (which  are 

12  111.  Central  R.  Co.  v.  McLean  Co.,  17  111.  291  (1855);  Hunsaker  v.  Wright, 
30  111.  146  (1863). 

13  Wiggins  Ferry  Co.  v.  East  St.  Louis,  102  111.  560  (1882);  see  East  St. 
Louis  v.  Wehrung,  46  111.  392  (1868)  ; Chicago  Packing  Co.  v.  Chicago,  88  111. 
221  (1878);  U.  S.  Distilling  Co.  v.  Chicago,  112  111.  19  (1884). 

14  Raymond  v.  Hartford  Fire  Ins.  Co.  196  Til.  329  (1902);  Harder’s  Stor- 
age Co.  v.  Chicago,  235  111.  58  (1908). 

15  People’s  Loan  and  H.  Assn.  v.  Keith,  153  111.  609,  618  (1894). 

10  Consolidated  Coal  Co.  v.  Miller,  236  111.  149,  153  (1908). 


229 


held  not  to  be  primarily  used  for  religious  purposes),  nor  the  property 
of  building  and  loan  associations,  or  fraternal  benefit  societies,  nor  the 
capital  stock  of  certain  classes  of  corporations.17 

An  act  of  1915  providing  for  the  payment  of  high  school  tuition 
for  pupils  from  districts  not  maintaining  a high  school,  out  of  the  state 
school  fund,  has  been  held  to  be  unconstitutional,  as  conflicting  with 
the  rule  of  uniformity  and  with  the  provision  of  Section  6 of  Article 
IX  against  the  release  or  commutation  of  taxes. 

“The  effect  of  the  act  is  to  require  the  tax  payers  in  a district 
maintaining  a high  school  to  indirectly  contribute  to  the  tuition  of  per- 
sons residing  in  districts  maintaining  no  such  school,  and  therefore  to 
contribute  to  the  local  and  corporate  purpose  of  furnishing  an  educa- 
tion to  the  children  of  such  district.  The  tax  payers  of  the  district 
maintaining  a high  school  pay  to  make  up  the  state  school  fund  and 
then  are  deprived  of  a portion  of  it  for  the  benefit  of  districts  not 
maintaining  any  high  school ; and  the  same  is  true  of  any  district  not 
maintaining  a high  school  which  does  not  send  any  of  its  pupils  to  a 
high  school  in  another  district.  The  act  violates  the  fundamental  prin- 
ciple of  uniformity  and  equality  in  taxation.  . . 

“The  effect  of  the  act  is  to  exempt  owners  of  property  in  districts 
not  providing  four  years  of  recognized  high  school  work  from  paying 
taxes  proportionate  to  the  value  of  their  taxable  property  as  compared 
with  the  taxable  property  of  other  districts,  to  the  extent  that  the  state 
tax  is  appropriated  to  a local  and  corporate  purpose.  The  result  is  to 
release  the  districts  from  the  payment  of  taxes  for  such  purpose.”18 


Inheritance  Tax.  The  inheritance  tax  has  been  held  not  tc 
conflict  with  the  constitutional  requirement  of  uniformity. 

“A  tax  which  affects  the  property  within  a specific  class  is  uniform 
as  to  that  class,  and  there  is  no  provision  of  the  constitution  which 
precludes  legislative  action  from  assessing  a tax  on  that  particular 
class.  By  this  act  of  the  legislature  six  classes  of  property  are  created 
heretofore  absolutely  unknown.  It  is  those  classes  of  property  depend- 
ing upon  the  estate  owned  by  one  dying  possessed  thereof  which  the 
state  may  regulate  as  to  its  descent  and  the  right  to  devise.  The  tax 
assessed  on  classes  thus  created  is  absolutely  uniform  on  the  classes 
upon  which  it  operates,  and  under  the  provisions  of  the  statute  it  is  to 
be  determined  by  valuation,  so  that  every  person  and  corporation  shall 
pay  a tax  in  proportion  to  the  value  of  his,  her  or  its  property  in- 
herited, and  is  not  inconsistent  with  the  principle  of  taxation  fixed  by 
the  constitution.  . . . No  want  of  uniformity  with  one  living 

who  owns  property  can  be  urged  as  a reason  why  the  statute  makes  an 
inconsistent  rule.  No  person  inherits  property  or  can  take  by  devise 

17  Northwestern  Univ.  v.  People,  86  111.  141  (1877);  Supreme  Lodge  v. 

Board  of  Review,  223  111.  54  (1906);  People  v.  First  Cong.  Church,  232  111.  158 
(1908);  Consolidated  Coal  Co.  v.  Miller,  236  111.  149  (1908);  People  v.  Deutsche 
Gemeinde,  249  111.  132  (1911). 

18  Board  of  Education  v.  Haworth,  274  111.  538,  544  (1916). 


230 


except  by  the  statute,  and  the  state,  having  power  to  regulate  this 
question,  may  create  classes  and  provide  for  uniformity  with  reference 
to  classes  which  were  before  unknown.”19 


Corporate  Authorities.  The  provisions  of  Article  IX  relating 
to  taxes  and  special  assessments  by  municipal  corporations  have  given 
rise  to  a number  of  questions  before  the  courts.  Under  the  constitu- 
tion of  1848,  it  has  held  that  Section  5 of  Article  IX,  providing  that 
the  corporate  authorities  of  “counties,  townships,  school  districts, 
cities,  towns  and  villages”  may  be  vested  with  power  to  assess  and  col- 
lect taxes  for  corporate  purposes,  limited  the  power  of  the  legislature 
to  authorize  any  other  than  corporate  authorities  to  assess  and  collect 
local  taxes;  and  that  by  ‘“corporate  authorities”  must  be  understood 
municipal  officers  either  directly  elected  by  the  people  to  be  taxed,  or 
appointed  in  some  mode  to  which  they  have  given  their  assent;  but 
that  it  does  not  limit  the  legislature  to  any  particular  corporate  authori- 
ties and  that  the  commissioners  of  a park  district  established  by  popular 
vote,  including  several  towns,  are  corporate  authorities  of  the  towns 
and  may  be  vested  with  power  to  tax.20 

But  a subsequent  act  of  the  legislature  changing  the  method  of 
appointing  park  commissioners  (by  a circuit  judge),  and  conferring 
this  power  on  the  governor,  without  the  consent  of  the  people  of  the 
district,  was  declared  invalid.21 

So  too,  election  commissioners  appointed  by  the  county  judge 
under  an  optional  law,  adopted  by  the  people  of  an  incorporated  city, 
are  regarded  as  corporate  authorities  for  incurring  election  expenses 
to  be  paid  by  the  city.22 


Local  Improvements.  On  the  other  hand,  under  section  9, 
Article  IX  of  the  constitution  of  1870,  it  was  held  that  taxes  and 
special  assessments  may  not  be  authorized  to  be  levied  for  drainage 
works  and  levees  by  commissioners  and  the  county  court  without  the 
consent  of  the  community  to  be  taxed;  and  it  was  further  held  that  the 
constitutional  provision  relating  to  special  assessments  for  local  im- 
provements applied  only  to  “cities,  towns  and  villages”,  and  not  to  all 
municipal  corporations.23 

Following  this  decision  section  31  of  Article  IV  of  the  constitu- 
tion was  amended  in  1878  so  as  to  authorize  the  corporate  authorities 
of  drainage  districts  to  be  vested  with  power  to  construct  and  maintain 
levees,  drains  and  ditches,  by  special  assessments  on  the  property 
benefited. 


19  Kochsperger  v.  Drake,  167  111.  122  (1897;  See  Magoun  v.  Illinois  Bank, 
170  U.  S.  283  (1897);  Billings  v.  Illinois,  188  U.  S.  97  (1903). 

20  People  v.  Chicago,  51  111.  1 (1869);  People  v.  Salomon,  51  111.  37  (1869); 
Harward  v.  St.  Clair  Drain  Co.,  51  111.  130  (1869). 

21  Cornell  v.  People,  107  111.  372  (1883). 

22  Wetherell  v.  Devine,  116  111.  631  (1886). 

23  Updike  v.  Wright,  81  111.  49  (1876). 


231 


In  a iater  case,  the  rule  that  corporate  authorities  means  those  lo- 
cally elected  or  appointed  in  some  mode  to  which  the  district  has  given 
assent,  has  been  applied  to  hold  invalid  a provision  in  a drainage  law 
providing  for  the  appointment  of  commissioners  without  any  provision 
for  a local  referendum  on  the  law.24 

So  too,  a provision  in  the  Levee  Act  requiring  towns  to  replace  a 
bridge  removed  by  commissioners  of  a drainage  district  was  held  un- 
constitutional, as  the  drainage  commissioners  are  in  no  sense  corporate 
authorities  of  the  towns.25 

At  the  same  time,  it  has  been  held  that  park  boards  may  be  vested 
with  power  to  make  local  improvements  by  special  assessments,  on  the 
ground  that  such  park  districts  are  municipal  corporations,  although; 
not  named  in  the  clause  of  Section  9,  authorizing  special  assessments, 
for  “cities,  towns  and  villages”.26 

The -provision  in  section  9 of  Article  IX  authorizing  the  use  of 
special  assessments  or  special  taxation  of  contiguous  property  for  local; 
improvements  has  been  held  to  authorize  one  or  the  other  method,  but 
not  both  in  combination  on  the  same  improvement.  General  taxation 
may  be  combined  with  special  assessments  or  with  special  taxation,  but 
not  special  assessments  and  special  taxation  in  the  same  proceeding.27 

A local  improvement  has  been  defined  as  “a  public  improvement 
which,  by  reason  of  its  being  confined  to  a locality,  enhances  the  value 
of  adjacent  property,  as  distinguished  from  the  benefits  diffused  by  it 
through  the  municipality.”  In  connection  with  special  assessments^, 
they  have  been  held  necessarily  to  involve  the  idea  of  permanency  ir* 
the  improvement,  since  they  are  based  on  the  idea  of  equivalent  benefit 
to  the  property  owner ; and  street  sprinkling  and  the  maintenance  and 
repair  of  boulevards  have  been  held  not  to  be  local  improvements 
which  could  be  paid  for  by  special  assessment.28 

It  has  further  been  held  that  a “local  improvement”  must  be 
wholly  within  the  limits  and  under  the  control  of  one  municipality. 
A sewer  from  a point  in  a city  to  the  city  limits  and  thence  through 
an  incorporated  town  to  an  outlet,  designed  for  use  by  both  munici- 
palities, is  one  continuous  improvement  and  not  a separate  improve- 
ment as  to  each  municipality.29 

24  Herschbach  v.  Kaskaskia  Sanitary  District,  265  111.  388  (1914);  Funkhouser 
v.  Randolph,  2"87  111.  94  (1919). 

25  People  v.  Block,  276  111.  286  (1916). 

26  Van  Nada  v.  Goedde,  263  111.  105  (1914). 

27Kuehner  v.  Freeport,  143  111.  92  (1892). 

28  Chicago  v.  Blair,  149  111.  310  (1894);  Crane  v.  West  Chicago  Park  Com- 
missioners. 153  111.  348  (1894). 

29Hundly  v.  Lincoln  Park  Commissioners,  67  111.  559  (1873);  Loeffler  v, 
Chicago,  246  111.  43  (1910). 


IV.  CRITICISM  OF  PRESENT  TAX  SYSTEM 


The  long  continued  and  widespread  criticism  of  the  present  system 
of  taxation  in  Illinois  relates  to  defects  in  administration,  failure  to 
meet  its  own  standards  of  uniformity  and  equality,  the  impossibility 
of  its  enforcement,  and  the  injustice  involved  in  a strict  application  of 
the  principles  on  which  the  tax  laws  are  based,  as  construed  by  the 
courts.  More  specifically,  the  objections  urged  are  to  the  general 
undervaluation  of  property,  the  great  inequalities  in  the  assessments 
made,  and  the  escape  from  taxation  of  large  amounts  of  property. 


Undervaluation.  The  most  obvious  factor  is  the  universal 
undervaluation  in  the  assessment  of  property  for  taxation.  This  prac- 
tice has  been  definitely  recognized  in  the  law ; by  the  provisions  for 
assessment  at  a fractional  part  of  the  “full  value”.  But  it  is  clear 
that  the  “full  value”  as  placed  on  the  assessment  books  falls  a good 
deal  short  of  the  actual  true  value.  This  situation  is  not  only  generally 
known ; but  has  been  officially  recognized  and  its  extent  indicated  to 
some  extent  in  the  reports  of  the  United  States  census.  In  the  table 
below  a comparison  is  made  of  the  census  estimates  of  the  true  value 
of  tangible,  taxable  property  and  the  assessed  valuation  of  property 
in  Illinois  at  different  census  years  from  1850  to  1912,  and  the  assessed 
valuation  for  1918. 

Estimated  true  value  and  assessed  valuation  of  taxable  property  in 


Illinois,  1850-1918 .a 


Tear. 

Estimated  true  value 
tangible  taxable  property 

Assessed  valuation. 

Percentage  assessed 
value  of  estimated 
true  value. 

1850 

$ 156,265,006 

$ 119,868,336 

76.8 

1860 

871,860,282 

389,207,372b 

44.6 

1870 

2,121,680,579° 

482,899,575b 

22.8 

1880 

3,092,000,000 

786,616,394 

25.4 

1890 

4,880,750,239 

809,682,926b 

16.8 

1900 

6,719,615,640 

4,048,414,630d 

60.2 

1904 

8,534,009,347 

5,402,359,960d 

63.3 

1912 

14,596,467,087 

7,031,019.696d 

48.0 

1918 

7,878,253,158d 

(a)  From  U.  S.  Census  Reports  on  Wealth.  Debt  and  Taxation. 

(b)  Auditor’s  reports  show  assessed  valuation  for  1860,  $367,227,742;  for  1870, 

$480,664,058;  for  1890,  $808,892,782'. 

(c)  Currency  Values.  _ 

(d)  Assessor’s  “Full  Value”,  5 times  the  taxable  value  for  1900  and  1904;  3 

times  the  taxable  value  for  1912  and  1918. 

It  will  be  noted  that  there  was  a steady  decrease  in  the  percentage 
of  true  value  assessed  from  1850  to  1890.  With  the  legal  recognition 


233 


of  undervaluation  in  the  assessment  law  of  1898,  there  was  a large 
increase  in  the  “full  value”  assessments.  But  since  1894  the  “full 
value”  assessments  have  again  declined  to  less  than  half  of  the  census 
estimates  of  the  true  value  of  tangible  taxable  property. 

This  general  underassessment  of  property  is  one  of  the  most 
important  factors  in  the  present  system  of  taxation.  So  long  as  real 
estate  and  tangible  property  is  undervalued  for  taxation,  it  cannot 
be  expected  that  intangible  property  will  be  returned  and  assessed  at 
its  true  value. 


Inequalities.  If  the  undervaluations  in  assessments  were  all 
made  on  the  same  basis,  the  principal  effect  would  be  to  increase  the 
nominal  rates  of  taxation  necessary  to  raise  public  revenue.  But 
along  with  the  general  undervaluation,  it  is  clear  that  there  is  a great 
deal  of  inequality  in  the  degree  of  undervaluation,  and  a corresponding 
inequality  in  distributing  the  burdens  of  taxation,  as  between  different 
classes  of  property  different  local  districts  and  different  taxpayers. 

Such  inequalities  appear  even  in  the  assessment  of  real  estate, 
as  between  different  counties,  and  as  between  lands  and  town  and  city 
lots.  In  some  counties  the  “full  value”  assessment  of  real  estate  has 
been  twice  as  high  in  proportion  to  the  census  estimates  of  true  value 
as  in  other  counties ; and  even  in  recent  years  there  has  been  a varia- 
tion of  as  touch  as  50  per  cent  in  the  -relative  degree  of  assessment 
as  between  different  counties.1 

As  between  farm  lands  and  urban  real  estate,  the  census  reports 
indicate  that  in  1912  farm  lands  were  assessed  at  a somewhat  lower 
proportion  of  true  value — about  50  per  cent  in  comparison  with  60 
per  cent  for  urban  real  estate.  The  increase  in  value  of  lands  since 
that  time  is  not  reflected  in  the  assessed  valuations. 

Little  attention  has  been  given  to  the  taxation  of  the  large  amount 
of  mining  lands  in  Illinois,  though  such  property  should  receive  special 
consideration  and  can  not  be  properly  assessed  by  local  assessors. 

The  general  undervaluation  of  real  estate  is  of  importance  in 
making  comparisons  with  the  greater  underassessment  of  intangible 
personalty.  The  full  assessment  of  the  latter  can  hardly  be  expected 
so  long  as  real  estate  is  largely  underassessed. 

Estimated  true  value  and  assessed  valuation  of  taxable  real  estate  in 

Illinois .a 


Tear. 

Estimated  true  value. 

Full  assessed  value. 

Percentage  assessed 
valuation  of  esti- 
mated true  value. 

1890 

$3,108,040,960 

$ 587,442,289 

18.9 

1900 

4,008,676,366 

2,841,841,545 

70.8 

1904 

5,185,946,082 

3,805,196.640 

73.3 

1912 

1918 

9,158,336,367 

4,945,501,638 

5,349,023,202 

54.0 

1 Fairlie,  J.  A.;  Taxation  and  Revenue  System  of  Illinois,  p.  26. 
a From  U.  S.  Census  Reports,  Reports  of  Auditor  of  Public  Accounts  and 
Proceedings  of  the  State  Board  of  Equalization. 


234 


Estimated  true  value  of  farm  lands  and  buildings  and  assessed  valua- 
tion of  lands  and  improvements  in  Illinois .a 


Year. 

Estimated  true  value 
of  farm  lands  and 
buildings. 

Assessed  valuation 
of  lands  and  im- 
provements.0 

Percentage  assessed 
valuation  to  esti- 
mated true  value. 

1850 

$ 96,133,290 

1860 

408,944,033 

$ 189,286,287 

*46.3 

1870 

920,506,346b 

225,889,130 

24.5 

1880 

1,009,594,580 

398,338,737 

39.8 

1890 

1,262.870,587 

345,750,094 

27.4 

1900 

1,821.224,434 

1,326,861,140 

72.9 

1904 

2,320,637,707 

1,705,229,270 

73.5 

1910 

3,522,792,570 

1,967.795,496 

55.8 

1912 

4,150,000,000 

2,075,269,068 

50.0 

1918 

2,120,270,607 

a From  U.  S.  Census  Reports,  Reports  of  Auditor  of  Public  Accounts  and 
Proceedings  of  State  Board  of  Equalization. 


b Currency  Values. 

c “Full  value”  assessments  for  1900  and  subsequent  years. 


More  striking  are  the  variations  and  inequalities  in  the  assess- 
ment of  personal  property. 

The  census  estimates  indicate  that  assessments  of  all  personal 
property  were  only  about  31  per  cent  of  the  true  value  of  tangible 
personal  property  in  1912,  as  compared  with  54  per  cent  for  real 
estate.  Tn  respect  to  the  various  items  of  enumerated  personal  prop- 
erty the  most  absurd  and  whimsical  variations  appear  in  the  official 
reports,  both  as  to  the  number  and  the  average  v&lue  of  particular 
items  in  different  counties,  and  in  different  towns  of  the  same  county.1 
On  the  face  of  the  returns  it  seems  clear  that  local  assessors  in  many 
parts  of  the  state  make  no  attempt  at  a complete  assessment  of  all  the 
petty  items  in  the  schedule  required  by  the  revenue  law ; and  in  some 
assessment  districts  it  is  said  they  omit  altogether  personal  property 
below  a minimum  limit.  In  all  of  this  there  is  no  effort  at  a uniform 
standard  of  exemption ; and  the  local  assessors  use  their  own  discretion. 


Average  taxable  value  of  specified  items  of  enumerated  property , igiS. 


Items. 

Maximum 
county  average 
value. 

Minimum 
county  average 
value. 

State 

average 

value. 

Cattle  

$ 23.24 

$ 8.02 

$ 13.49 

Hogs  

8.05 

1.15 

4.73 

Billiard  Tables 

120.72 

3.00 

17.14 

Carriages  and  Wagons 

21.00 

4.17 

7.15 

Automobiles  

128.13 

23.56 

85.34 

Watches  and  Clocks 

20.25 

.97 

1.78 

Sewing  machines 

4.73 

1.49 

2.15 

Pianos  

41.41 

14.23 

21.27 

Steamboats  

997.00 

2.00 

139.80 

In  St.  Clair  County  only  10  steamboats  were  assessed,  in  Cook  County  64, 
and  in  Lake  County  258  (925  in  1917).  No  sewing  machines  were  assessed  in 
Pulaski  and  Putnam  counties. 


1 See  report  on  Taxation  in  Illinois  . by  the  committee  on  revenue  of  the 
liouse  of  representatives  in  1919. 


235 


Estimated  true  value  and  assessed  valuation  of  taxable  property  in 

Illinois,  1912* 


Estimated 
true  value. 

Full 

assessed  value. 

Per- 

cent- 

age. 

Taxable  value. 

$14,596,467,087 

$7,031,019,696 

48. 

$2,343,673,232 

Real  property  and  im- 

9,158,336,367 

4,928,513,847 

54. 

1,642,513,847 

Personal  and  other 

tangible  property.  . 
Intangible  property.  . 

5,438,130,720 

1,703,892,204 

398,613,645 

178,420,251 

31.3 

567,964,068 

132,871,215 

59,473,417 

Live  stock 

386,701.265 

’46.2 

Farm  Implements  and 

Machinery  

79,473,427 

13,740,690 

17.2 

4,580,230 

Manufacturer’s  ma- 

* 

chinery,  tools,  etc. . 
Railroads  and  Equip- 

451,299,068 

24,520,277 

5.4 

8,173,759 

ment  

926,403,787 

616.276,965 

66.5 

205,425,655 

Street  railways,  ship- 

ping, water  works, 
etc 

748.713,023  1 
2,640,354,876  f 

All  other  

Gold  and  'silver  coin 

870,933,021 

25.7 

290,311,007 

and  bullion 

205,185,274 

205,425,655 

108,365,832 

24,505,383 

Moneys,  credits,  etc.. 

325,097,496 

73,516.149 

Capital  Stock  

a U.  S.  Census  Report  on  Wealth,  Debt  and  Taxation  1912,  and  Proceedings 
of  the  State  Board  of  Equalization. 


Inequalities  and  variations  in  the  assessment  of  real  estate  and 
some  kinds  of  tangible  personal  property  may  be  reduced  by  more 
efficient  methods  of  administration ; and  some  improvement  in  such 
matters  may  be  looked  for  from  the  State  Tax  Commission  established 
in  1919.  But  if  it  seems  advisable  to  exempt  by  law  a minimum 
amount  of  household  property  (as  is  done  in  a number  of  states,  and 
as  is  practically  done  by  local  assessors  in  Illinois),  or  to  establish  some 
kind  of  business  tax  in  place  of  the  taxation  of  merchandise  or  manu- 
facturer’s equipment,  a change  in  the  present  constitutional  require- 
ment for  uniform  taxation  of  all  property  will  be  necessary.  Still  fur- 
ther, if  it  should  be  desired  to  permit  any  classification  of  real  estate, 
(for  example,  so  as  to  place  on  a definite  legal  basis  variations  which 
now  exist  in  practice  in  a hap-hazard  way),  or  to  segregate  some 
classes  of  property  for  state  revenue  (such  as  railroads  and  public 
utilities) — as  is  done  in  some  states — the  present  constitutional  pro- 
visions will  need  to  be  altered. 


Intangible  property.  The  most  serious  evasions  of  the  present 
tax  laws  however  are  in  connection  with  the  assessment  of  intangible 
wealth,  such  as  money,  credits,  stocks  and  bonds.  Under  the  existing 
laws,  such  wealth  is  taxable,  on  the  same  basis  as  tangible  property. 
But  only  a small  proportion  of  it  has  ever  been  taxed ; and  no  method 
has  been  discovered  of  making  any  satisfactory  estimate  of  the  total 
amount.  Some  facts  in  connection  with  the  assessment  of  such  prop- 
erty and  as  to  the  value  of  certain  kinds  of  wealth  included  will  throw 
light  on  the  great  degree  of  evasions. 


236 


The  table  below  shows  the  assessed  valuation  of  various  items  of 
personal  property  in  Illinois,  for  Cook  County  and  for  all  other  coun- 
ties for  the  year  1918. 


Taxable  valuation  of  specified  items  of  personal  property  in  Illinois, 
ipi8 — Cook  County  and  all  other  counties ” a 


Items. 

State  of 
Illinois. 

Cook  County. 

All  other 
counties. 

Enumerated  property 

$106,441,575 

$4,673,813 

$101,767,762 

Merchandise  

51,762,151 

24,341,928 

27,420,223 

Grain  

19,754,320 

266,548 

19,487,772 

Household  and  office  furniture.  . 

22,860,711 

7,535,943 

15,324,768 

Money  of  Bankers,  etc 

17,753,576 

4,543,135 

13,210,441 

Credits  of  Bankers,  etc 

12,849.327 

5,386,388 

7,462,939 

Money  not  Bankers,  etc 

39,196.990 

4.543,135 

34.653,855 

Credits,  not  Bankers,  etc 

36,632,932 

2,220,205 

34,412,727 

Shares  of  Corporation  stock.... 

2,339,545 

503,595 

1,835,950 

Bonds  and  Stocks 

7,787,038 

3,004,095 

4,782,943 

Property  of  Corporations 

20,741,147 

15,996,093 

4,745,054 

Bank  shares  

75,361,488 

59,572,528 

15.788,960 

All  other  property 

140,407,284 

119,181,749 

21,225,535 

Total  Unenumerated  property... 

477,548,146 

256,035.698 

221,512,448 

Total  Personal  property 

583,989,721 

260,709,511 

323,280,210 

It  will  be  noted  that  both  for  enumerated  property  and  for  most 
of  the  items  of  intangible  wealth,  the  assessment  for  Cook  County  is 
only  a small  fraction  of  that  of  the  rest  of  the  state;  although  this 
county  has  nearly  half  of  the  total  real  estate  assessment,  and  four- 
fifths  of  the  assessment  of  bank  shares.  On  the  other  hand,  the  assess- 
ment for  “all  other  property”  in  Cook  County  is  about  six  times  the 
amount  under  this  head  for  the  rest  of  the  state,  and  is  nearly  one-half 
of  the  total  assessment  for  personal  property  in  Cook  County.  The 
explanation  of  this  seems  to  be  that  a large  proportion  of  the  personal 
property  assessments  in  Cook  County  are  made  in  lump  sums  under 
the  heading  of  “all  other  property”,  without  attempting  to  segregate 
them  under ‘the  various  items  in  the  schedule.  Such  assessments  ap- 
pear to  be  based  on  statements  by  the  taxpayers  to  the  assessors,  made 
in  place  of  filing  the  schedules  required  by  law.  How  much  of  this 
should  be  apportioned  to  the  various  items  of  tangible  or  intangible 
property,  there  is  no  way  of  determining;  but  as  about  one-third  of  the 
personal  property  assessments  in  other  counties  are  for  intangible 
property,  it  may  be  roughly  estimated  that  at  least  one-third,  and  per- 
haps more,  of  “all  other  property”  in  Cook  County  represents  assess- 
ments for  intangible  property. 

This  large  uncertain  item,  and  the  impossibility  of  apportioning  it 
exactly  to  the  various  other  items,  adds  to  the  difficulties  of  attempting 
to  estimate  the  extent  to  which  intangible  property  escapes  taxation. 
The  tables  below,  however,  give  some  data  as  to  two  important  items 
in  the  personal  property  list.  Bank  deposits  are  legally  assessable  as 
money  of  other  than  banker,  broker,  etc. ; and  mortgages  form  perhaps 
the  largest  portion  of  credits  other  than  bankers,  brokers,  etc.  In  both 
of  these  cases,  the  item  in  the  assessment  schedule  covers  more  than 
the  property  with  which  it  is  compared.  Yet  in  each  case,  it  will  be 

a From  Proceedings  of  the  State  Board  of  Equalization. 


237 


seen  that  the  full  assessed  value  of  this  whole  group  of  property  is 
only  a small  fraction  of  the  true  values  estimated  for  but  a part  of 
such  property  legally  subject  to  assessment. 

Comparison  of  individual  bank  deposits  with  assessed  full  valuation  of 
money  other  than  of  bankers,  brokers,  etc.& 


Year. 

Individual 
bank  deposits. 

Assessed  full 
value  of  money 
other  than 
bankers,  etc. 

Per  cent  de- 
posits of  as- 
sessed value  of 
money,  etq. 

State  of  Illinois. 

1890 

$ 142,040,086 

$ 9,456,573 

6.6 

1900 

317,169,861 

75,578,260 

23.8 

1904 

519,943,194 

89,442,815 

17.2 

1912 

958,707.244 

101,486,574 

10.5 

1916 

1,224.879,536 

108,700,854 

8.8 

1918 

117,590,970 

~ 

Cook  County. 

1890 

98,937,333 

1.061,264 

1.1 

1900 

220,149,202 

8,376,655 

3.8 

1904 

347,848,769 

9,829,575 

2.8 

1912 

622,524,029 

6,519,831 

1.0 

1916 

11.104.650 

1918 

13,629,405 

All  Other  Counties. 


1890 

43,102,753 

8,395,309 

19.5 

1900 

97,020,659 

67,201,605 

69.3 

1904 

172,094.425 

79.613.240 

46.3 

1912 

336,173,215 

94,966,743 

28.2 

1916 

97,596.204 

1918 

103,961,565 

a Compiled  from  Haig’s  History  of  the  General  Property  Tax  in  Illinois, 
Reports  of  the  Comptroller  of  the  Currency,  Auditor’s  Report  on  State  Banks, 
and  Proceedings  of  the  State  Board  of  Equalization. 


238 


Comparison  of  Estimated  True  Value  of  Taxable  Mortgages  with 
Assessed  Full  Valuation  of  Credits  other  than  bankers,  etc. 


Estimated  true 

Assessed  full 

Per  cent  mort- 

Year. 

value  of  tax- 

value of  cred- 

gages to  as- 

able mort- 

its  other  than 

sessed  value 

. gages.8 

bankers,  etc.b 

of  credits. 

State  of  Illinois. 


1880 

$ 137,297,789 

$ 17,680,302 

12.8 

1887 

246,492,072 

12,168,825 

4.9 

1904 

600,000,000 

118,140,370 

19.7 

1912 

1918 

1,000,000,000 

115,685,073 

109,898,796 

11.5 

Cook  County. 


1880 

47,566,172 

211,815 

0.5 

1887 

137,372,075 

117,170 

0.1 

1904 

350,000,000 

18,567,275 

5.3 

1912 

600,000,000 

15,271,035 

2.5 

1918 

6,660,615 

All  Other  Counties. 


1880 

89,731,617 

17,468,487 

19.5 

1887 

109,119,997 

12.051,655 

11.1 

1904 

250,000.000 

99,573.095 

39.9 

1912 

400,000,000 

100,414,038 

25.1 

1 918 

103,238,181 

In  the  table  below  the  proportionate  assessment  of  moneys  and 
credits  other  than  bankers,  etc.,  are  compared  with  the  proportionate 
assessment  of  all  tangible  property,  real  estate  and  farm  lands. 


Percentages  assessed  full  value  of  estimated  true  value. 


Year. 

All  taxable 
property. 

All  real 
estate. 

Farm  lands. 

Money 
other  than 
bankers,  etc. 

Credits 
other  than 
bankers,  etc. 

1880 

25.4 

39.8 

' 

12.8 

1887T 

' *6.6 

4.9 

1890 

16.8 

18.9 

27’.  4 

1900 

60.2 

70.8 

72.9 

23.8 

1904 

63.3 

73.3 

73.5 

17.2 

19*7 

1912 

48. 

54. 

50. 

10.5 

11.5 

a For  1880  and  1887  from  Haig’s  History  of  the  General  Property  Tax  in 
Illinois,  based  on  data  in  Report  of  the  bureau  of  Labor  Statistics,  1888.  Data 
for  1904  and  1912  are  computed  from  study  of  Jo  Daviess  County  (See  Report 
of  Wisconsin  Tax  Commission,  1907)  and  census  estimates  of  true  value  of  real 
6St3/tG  * 

b From  Proceedings  of  the  State  Board  of  Equalization. 

From  the  above  figures,  it  appears  that  money  and  credits  other 
than  bankers  have  been  assessed  at  not  more  than  one-third  as  much  of 
their  true  value  as  real  estate,  and  in  recent  years  at  not  more 
than  about  one-fifth  as  much  as  real  estate.  Even  assuming  that  one- 


239 


third  of  the  assessment  for  “all  other  property”  in  Cook  County  repre- 
sents property  assessable  under  these  items,  the  total  assessment  would 
be  only  about  one-fourth  of  the  percentage  of  true  value  as  in  the  case 
of  real  estate. 

This  does  not  mean,  however,  that  there  is  simply  a general  under- 
valuation of  intangible  wealth  in  this  proportion,  and  that  all  or  most 
of  those  owning  such  property  are  assessed  for  about  one-fifth  or  one- 
fourth  of  their  holdings.  In  many  cases  where  such  intangible  wealth 
is  assessed  it  is  valued  at  least  as  much  in  proportion  to  true  value  as 
is  real  estate,  and  in  not  a few  cases  at  a greater  proportion.  Such 
property  when  in  course  of  probate  or  owned  by  trust  estates  is  a mat- 
ter of  public  record ; and  may  be  assessed  at  its  actual  value ; and  thus 
pay  a relatively  larger  tax  than  real  estate.  The  undervaluation  of 
intangible  property  in  the  aggregate  therefore  means  that  a large  pro- 
portion of  such  property  is  not  assessed  at  all  and  escapes  taxation 
altogether. 

When  mortgages,  bonds  and  other  securities  are  returned  for 
taxation,  and  are  assessed  according  to  law,  at  their  face  value,  such 
property  is  in  fact  assessed  and  taxed  relatively  much  more  than  real 
estate  and  tangible  property,  which  as  has  been  noted  are  assessed  at 
much  below  their  true  value.  So  long  as  real  estate  is  largely  under- 
valued by  the  assessors,  there  should  be  at  least  a corresponding 
reduction  in  the  assessment  of  intangible  property  in  order  to  comply 
with  the  theory  of  uniformity  of  taxation. 

These  difficulties  are  not  likely  to  be  overcome  by  any  change  in 
methods  of  administration.  The  experience  of  other  states  confirms 
that  of  Illinois,  that  it  appears  to  be  impossible  under  any  administra- 
tive machinery  to  secure  the  full  assessment  of  intangible  property 
so  long  as  it  is  subject  to  taxation  on  the  same  basis  as  real  estate  and 
other  tangible  property.  The  practical  results  of  such  attempts  is 
strengthened  by  other  arguments.  It  is  urged  on  the  one  hand  that 
the  taxation  of  such  intangible  holdings  is  double  taxation,  since  they 
merely  represent  an  interest  in  tangible  property  already  taxed ; and  on 
the  other  hand,  it  is  asserted  that  taxation  at  the  rates  now  imposed 
under  the  general  property  tax,  if  enforced,  would  amount  to  the 
unjust  confiscation  of  from  a third  to  a half  of  the  income;  and  that 
•any  approach  to  collecting  such  taxes  would  merely  compel  investors 
to  withdraw  their  investments  from  this  state. 

In  some  states  mortgages  are  entirely  exempt  from  taxation,  on 
the  ground  that  they  represent  an  interest  in  property  already  taxed. 
In  other  states  mortgages  are  subject  to  a special  recording  tax,  or 
they  are  taxed  along  with  other  intangible  property  at  a special  rate 
less  than  that  levied  on  real  estate.  The  experience  of  such  states, 
as  Pennsylvania,  Maryland,  Michigan,  South  Dakota,  Virginia  and 
others,  as  shown  later  in  this  pamphlet,  shows  that  by  such  special 
taxes  a larger  revenue  is-  secured  than  under  the  general  property  tax. 

To  make  similar  or  other  changes  in  the  methods  of  taxing  in- 
tangible property  in  Illinois  will  require  changes  in  the  present  con- 
stitutional provisions  for  the  uniform  taxation  of  all  property. 


240 


Special  Taxes.  Under  the  Illinois  constitution  special  taxes 
are  authorized,  in  addition  to  the  general  property  taxes,  on  certain 
kinds  of  business  and  on  corporations.  Some  use  has  been  made  of 
this  authority  in  the  form  of  fees  and  taxes  on  corporations  and  insur- 
ance premiums  and  on  some  of  other  kinds  of  business.  A consider- 
able revenue  is  derived  by  the  state  from  corporation  fees,  automo- 
bile licenses  and  the  inheritance  tax;  and  the  revised  corporation  law 
of  1919  provides  for  an  increased  scale  of  license  taxes  on  corporations. 
But  such  special  taxes  are  not  likely  to  be  utilized  fully  so  long  as 
they  must  be  imposed  in  addition  to  the  general  property  tax.  If  they 
could  be  levied  as  a substitute  for  property  taxes  and  if  they  were  not 
restricted  to  the  particular  classes  named  in  the  constitution  a larger 
amount  of  revenue  could  be  derived  from  special  taxes. 

Among  the  methods  of  taxation  used  in  other  states  and  counties, 
but  which  are  not  .permitted  under  the  Illinois  constitution  the  fol- 
lowing may  be  noted : Income  taxes,  either  at  a flat  rate  or  graduated 
and  progressive ; special  taxes  on  mortgages  or  on  intangible  property ; 
a state  tax  on  railroads  and  other  public  utilities  (based  on  gross  earn- 
ings or  at  the  average  rate  on  other  property)  ; business  and  habitation 
taxes ; and  taxes  on  land  values. 

It  is  not  necessary  here  to  consider  the  relative  merits  and  de- 
fects of  these  different  methods  of  taxation.  For  it  will  not  be  advis- 
able to  establish  a complete  system  of  taxation  in  the  constitution. 
But  none  of  these  methods  may  be  used  in  this  state  without  altering 
the  present  constitutional  provisions. 


Special  assessments.  Some  problems  have  been  raised  by  the 
constitutional  provisions  relating  to  special  assessments  and  special 
taxation  for  local  improvements.  The  history  of  these  provisions 
indicate  that  the  purpose  of  the  clause  adopted  in  the  constitution 
of  1870  (Section  9 of  Article  XI)  was  to  authorize  special  taxation  for 
local  improvements,  as  well  as  special  assessments  for  benefits,  which 
had  been  already  recognized.  But  in  the  provision  adopted  in  1870 
the  use  of  both  special  assessments  and  special  taxation  for  these 
purposes  was  limited  to  cities,  towns  and  villages.  An  amendment  to 
the  constitution  was  therefore  necessary  to  authorize  special  assess- 
ments for  drainage  districts;  but  this  amendment  does  not  authorize 
special  taxation  for  such  districts.  The  Supreme  Court  has  held 
that  special  assessments  may  be  used  by  park  districts.  But  a change 
in  the  constitution  will  be  required  to  permit  special  assessments 
by  municipal  corporations  other  than  cities,  towns,  villages,  park 
districts  and  drainage  districts. 

The  Supreme  Court  has  held  that  the  term  “local  improvements” 
for  which  special  assessments  are  permitted  means  improvements  of 
a permanent  character ; that  each  improvement  must  be  under  the 
control  of  a single  municipality ; and  that  special  assessments  may  not 
be  used  for  an  improvement  undertaken  jointly  by  two  or  more  munici- 
palities. 


241 


If  it  is  considered  desirable  to  permit  special  assessments  for 
other  than  permanent  improvements  (such  as  street  sprinkling,  snow 
removal  or  garbage  collection,  as  is  authorized  in  some  states),  or  for 
improvements  which  require  the  joint  action  of  two  or  more  neigh- 
boring municipalities,  a change  in  the  constitutional  provisions  will 
be  required. 

It  has  also  been  decided  by  the  Supreme  Court  that  special  as- 
. sessments  and  special  taxation  may  not  be  combined  in  connection 
with  the  same  improvement.  The  question  may  be  considered  whether 
it  is  desirable  to  permit  such  a combination. 


Uniformity  within  taxing  districts.  The  requirement  of  uni- 
formity of  taxation  within  taxing  districts  (Art.  IX,  sec.  9)  has  also 
caused  difficulties;  and  in  connection  with  the  constitutional  limitation 
on  municipal  debts  has  forced  the  multiplication  of  overlapping  local 
districts,  and  prevented  the  development  of  a satisfactory  system  of 
local'  government. 

This  has  been  most  notable  in  connection  with  city  and  village 
government.  Annexation  of  outlying  territory  to  such  municipal 
districts  is  delayed,  because  even  farm  lands  when  annexed  are  at  once 
subject  to  taxes  for  urban  improvements  from  some  of  which  they 
derive  little  or  no  benefit.  But  when  some  services  or  improvements 
of  the  urban  community  are  needed  or  desired,  the  only  way  they  can 
be  secured  is  through  the  agency  of  a special  taxing  district.  In  this 
way  urban  school  districts  are  extended  beyond  the  limits  of  the  cities ; 
and  special  park,  drainage  or  sanitary  districts  are  organized,  adding 
to  the  complexities  of  local  government.  A single  local  government 
over  the  whole  territory,  with  power  to  levy  taxes  for  certain  im- 
provements and  services  only  on  property  benefited  would  be  more 
effective. 

An  important  illustration  of  these  conditions  may  be  found  in  the 
sanitary  district  of  Chicago,  the  functions  of  which  could  well  be 
performed  by  the  county  if  the  county  could  be  authorized  to  levy 
sanitary  district  taxes  only  on  the  territory  and  property  now  within 
the  sanitary  district. 

Another  illustration  has  been  the  necessity  for  organizing  non- 
high  school  districts  for  the  sole  purpose  of  providing  an  agency  to 
levy  taxes  for  high  school  tuition  in  parts  of  a county  not  in  a high 
school  district. 

A somewhat  similar  problem  is  presented  by  the  suggestion  to 
authorize  a county  tax  for  county  libraries,  to  be  levied  on  property 
not  already  taxed  for  city  or  village  libraries  in  the  county. 

It  may  also  be  suggested  that  public  improvements  for  the  benefit 
of  a large  part  of  the  state,  which  cam  most  effectively  be  carried  out 
by  the  state,  might  be  more  equitably  financed  if  parts  of  the  state 
clearly  not  benefited  could  be  relieved  from  state  taxes  for  such  im- 
provements. 


242 


Tax  sales  and  redemptions.  The  provisions  in  the  present 
constitution  relating  to  tax  sales  and  redemption  of  property  from 
such  sales  are  less  detailed  than  those  in  the  constitution  of  1848. 
But  the  existing  provisions  appear  to  prevent  legislation  to  remedy 
some  defects  in  the  present  system  of  tax  sales,  so  as  to  eliminate  the 
professional  tax  buyer  and  to  permit  a taxing  body  to  purchase  land 
upon  which  taxes  are  delinquent  without  a sale  open  to  competitive 
bidding. 


Official  criticisms.  Complaints  and  criticisms  of  the  Illinois 
tax  system  have  been  freely  and  frequently  made  not  only  by  numerous 
private  persons  and  associations  but  also  by  public  officials.  Some  of 
those  made  by  a number  of  governors  and  in  the  reports  of  several 
special  investigations  may  be  noted : 

Governor  Beveridge,  in  his  message  to  the  general  assembly  in 
1875  stated : 

“It  is  apparent  that  a large  portion  of  the  personal  property, 
especially  moneys  and  credits,  are  not  assessed ; that  all  property, 
real  and  personal,  is  assessed  below  its  actual  value ; and  that  a con- 
siderable precentage  of  the  taxes  are  never  collected.” 

In  1881,  Governor  Cullom  recommended  the  appointment  of  a 
revenue  commission,  to  collect  statistics,  to  examine  the  tax  systems 
of  other  states  and  counties,  and  to  aid  in  the  preparation  of  a revised 
law  “which  will  better  equalize  and  simplify  the  burdens  of  taxation.” 
In  1885,  under  a joint  resolution  of  the  34th  general  assembly, 
a revenue  commission  was  appointed  by  Governor  Oglesby,  “to  amend 
and  revise  the  revenue  law  of  the  state  of  Illinois,  and  to  propose 
and  frame  a revenue  code  which  shall  be  just  to  all  classes  of  property 
and  individual  and  corporate  associations.”  This  commission  re- 
ported, on  March  1,  1886,  that  the  principal  defects  of  the  revenue 
system  were:  (1)  Gross  inequality  in  assessments  as  between  individ- 

uals and  different  kinds  of  property;  (2)  arbitrary  and  unjust  opera- 
tion of  the  system  of  equalization;  (3)  the  low  rate  of  as- 
sessments; (4)  the  high  rate  of  taxation;  (5)  the  inadequacy  of 
existing  methods;  and  (6)  the  want  of  a central  and  efficient  super- 
vision of  administration.  The  commission  also  submitted  the  draft 
of  a new  revenue  law,  proposing  important  changes  in  administration, 
by  providing  for  county  assessors  and  a state  tax  commission,  with 
changes  in  the  statutory  provisions  in  relation  to  personal  property 
schedules,  the  assessment  of  capital  stock,  and  the  taxation  of  public 
utilities.  No  action  was  taken  on  this  report  or  the  proposed  revenue 
law. 

In  1889,  Governor  Oglesby  again  invited  attention  to  the  proposed 
revenue  code  submitted  by  the  revenue  commission  and  made  the  fol- 
lowing statement : 

“It  is  within  the  knowledge  of  every  reflecting  citizen  that  our 
revenue  laws  are  not  satisfactory.  It  is  well  understood  that  large 
amounts  of  taxable  property  escape  taxation  every  year ; and  that 


243 


taxes  collected  on  property  made  to  bear  the  burden  of  supporting 
the  government  are  most  inadequately  and  unfairly  laid  upon  such 
property.” 

The  State  Bureau  of  Labor  Statistics  made  two  extended  reports 
relating  to  taxation.  Its  fifth  biennial  report,  in  1888,  included  the 
results  of  a detailed  study  of  mortgage  indebtedness  throughout  the 
state,  which  furnished  data  for  comparisons  with  the  assessment  of 
mortgages  for  taxation.  The  eighth  biennial  report  of  the  bureau,  in 
1894,  was  devoted  entirely  to  a comprehensive  investigation  of  taxa- 
tion, showing  the  inequalities  of  the  existing  system  with  reference 
to  the  taxation  of  both  personal  property  and  real  estate.  This  report 
made  the  following  recommendations  : 

1.  The  divorce  of  state  from  local  taxation. 

2.  The  separation  of  improvement  from  site  values  in  tax  returns. 

3.  The  organization  of  boards  of  review. 

4.  Maps  and  records  of  taxable  property. 

5.  A constitutional  amendment  to  authorize  local  option  in  taxa- 
tion. 

6.  A constitutional  amendment  to  establish  site  value  taxation. 

These  investigations  indicated  the  small  extent  to  which  mort- 
gages and  other  intangible  property  were  assessed  and  taxed. 

In  1895,  Governor  Altgeld  asserted,  in  his  message  to  the  general 
assembly : 

“Whatever  may  be  said  of  the  theory  of  our  .revenue  system  in 
this  state,  it  is  in  its  practical  workings,  a grant  of  injustice.  Under 
it  the  great  concentrations  of  wealth  contribute  comparatively  little, 
while  the  owners  of  small  and  moderate  sized  properties  are  forced  to 
bear  nearly  all  the  burdens  of  government.” 

Two  years  later,  he  referred  again  to  the  subject,  and  stated  that: 

“Every  governor  for  more  than  twelve  years  has  urged  a revision 
of  our  revenue  laws  and  pronounced  the  existing  system  a gigantic 
fraud.” 

After  the  passage  of  the  assessment  law  of  1898,  Governor  Tanner, 
in  his  message  of  1901,  stated  that: 

“The  revenue  laws  still  need  revision  and  amendment.” 

In  1907,  Governor  Deneen  recommended  the  formation  of  another 
revenue  commission ; but  vetoed  the  bill  passed  because  it  provided 
that  it  should  be  composed  of  members  of  the  general  assembly.  Two 
years  later  he  renewed  this  recommendation ; and  an  act  was  passed 
providing  for  the  appointment  of  a special  tax  commission,  to  investi- 
gate the  system  of  taxation  and  to  recommend  needed  changes.  This 
commission,  consisted  of  John  P.  Wilson,  chairman,  Alfred  M.  Craig, 
Edmund  J.  James,  secretary,  B.  F.  Caldwell,  A.  P.  Grout,  Harrison 
B.  Riley  and  B.  L.  Winchell.  It  had  prepared  a comprehensive  report 
on  the  Taxation  and  Revenue  System  of  Illinois , with  some  com- 
parisons with  methods  of  taxation  in  other  states  and  countries ; and 
also  a compilation  of  the  Tax  Laws  and  Judicial  Decisions.  In  its 


244 


report  to  the  governor  in  1911,  the  commission  criticised  both  the 
system  of  tax  administration,  and  the  uniform  general  property  tax 
prescribed  by  the  state  constitution. 

As  a means  of  improving  the  administration  of  the  tax  laws,  this 
commission  renewed  the  recommendations  of  the  revenue  commission 
of  1886  for  a permanent  state  tax  commission  and  for  county  assessors. 
The  recommendation  for  a permanent  state  tax  commission  has  been 
finally  acted  on  in  1919,  and  such  a commission  has  now  been  estab- 
lished. The  principal  conclusions  of  this  commission  in  relation  to  the 
present  system  of  taxation  were  as  follows : 

1.  Undervaluation,  high  tax  rates  and  “a  marked  inequality  in 
the  assessment  of  dififerent  classes  of  property  and  of  different  pieces 
of  property  of  the  same  kind  owned  by  dififerent  persons.” 

2.  “The  most  numerous  complaints  and  the  most  serious  inequal- 
ities arise  in  the  assessment  and  taxation  of  intangible  personal  prop- 
erty, such  as  moneys  and  credits,  mortgages,  bonds  and  stocks.  . . . 
It  is  evident  that  such  intangible  holdings  . . . cannot  be  uniformity 
or  equitably  assessed  under  the  general  property  tax  ...” 

“As  a result  of  the  present  situation  there  is  a notorious  evasion  of 
the  terms  of  the  revenue  law,  which  are  unjust  in  principle  and  unen- 
forcible  in  practice 

“Our  study  of  the  tax  system  of  other  states  shows  clearly  that 
other  methods  of  taxation  than  the  general  property  tax  are  both 
more  equitable  and  at  the  same  time  more  successful  as  means  of  rais- 
ing public  revenue  from  intangible  property.  . . . But  no  such 

methods  can  be  introduced  in  Illinois  under  the  present  constitutional 
restrictions  requiring  the  taxation  of  all  classes  of  property  on  an 
absolutely  uniform  basis.  It  therefore  becomes  necessary  for  any 
adequate  change  in  the  system  of  taxation  that  the  constitutional  pro- 
visions be  amended.” 

3.  “.  . . In  regard  to  some  kinds  of  tangible  personal  prop- 

erty, exemptions  would  seem  to  be  advisable,  and  for  other  kinds  other 
methods  of  taxation  would  be  better  than  the  present  ad  valorem  sys- 
tem. But  here  again  no  changes  from  the  present  basis  can  be  legally 
made  without  a change  in  the  constitutional  provisions.” 

This  report  was  submitted  to  the  general  assembly  by  Governor 
Deneen  with  a special  message  commending  the  recommendations  of 
the  commission. 

Governors  Dunne  and  Lowden  have  also  advocated  changes  in  the 
revenue  law,  with  special  reference  to  the  creation  of  a permanent 
state  tax  commission  in  place  of  the  state  board  of  equalization. 


245 


V.  PROPOSED  CONSTITUTIONAL  AMENDMENTS 


A number  of  proposed  constitutional  amendments  relating  to  tax- 
ation have  been  introduced  in  the  general  assembly. 

At  the  adjourned  session  of  1874  two  proposed  amendments  were 
introduced  in  the  Senate,  one  to  authorize  exemption  from  taxation  of 
property  not  to  exceed  $1,000,  and  another  to  authorize  an  income  tax. 
The  latter  came  to  a vote  in  the  senate,  but  failed  to  receive  the  re- 
quired two-thirds  vote.  Other  resolutions  proposing  amendments  to 
authorize  an  income  tax  and  to  extend  the  list  of  enumerated  occupa- 
tions and  interests  subject  to  special  taxes  were  introduced  in  1875, 
1877  and  1879,  but  were  not  acted  upon.  In  1901  and  1905  proposed 
amendments  to  provide  for  local  option  in  taxation  were  introduced ; 
but  no  action  was  taken.  In  1907,  a proposed  amendment  was  intro- 
duced to  authorize  classification  of  property ; but  this  also  failed  to 
secure  favorable  action.2 

The  special  tax  commission  of  1910  recommended  an  amendment 
to  the  state  constitution  to  authorize  the  classification  of  personal  prop- 
erty for  taxation.  As  was  pointed  out  by  the  commission  the  proposed 
amendment  would  not  of  itself  make  any  change  in  the  system  of  tax- 
ation, but  would  remove  some  of  the  restrictions  on  the  general  as- 
sembly and  make  possible  the  enactment  of  statutory  changes  in  the 
future.  No  action  was  taken  by  the  general  assembly  in  1911  or  1913. 

One  member  of  the  commission,  who  signed  the  report,  also  sub- 
mitted a minority  report  in  favor  of  still  broader  power  in  the  general 
assembly. 

On  November  5,  1912,  the  following  question  was-  submitted  to 
the  voters  of  Illinois  under  the  Public  Policy  Act : 

“Shall  the  next  general  assembly  (in  order  that  the  people  may  be 
relieved  of  a system  of  taxation  which  places  a comparatively  heavier 
burden  upon  the  poor  man  than  upon  his  wealthier  neighbor,  which  is 
unjust  to  all  who  fall  under  the  full  force  of  its  operation,  and  which 
places  a premium  upon  dishonesty)  submit  to  the  voters  of  the  state 
of  Illinois  at  the  next  following  state  election  an  amendment  to  the 
state  constitution  providing  for  the  classification  of  property  for  pur- 
poses of  taxation,  with  taxes  uniform  as  to  each  class  within  the  juris- 
diction levying  the  same?” 

The  vote  upon  this  question  was:  Yes,  541,189;  No,  187,467. 

This  was  the  largest  affirmative  vote  ever  cast  in  Illinois  up  to  that 
time  on  any  question  submitted  for  popular  vote,  except  that  for  direct 
primaries  in  1904. 


3 Civic  Federation  Study  No.  2,  Ch.  5. 


246 


Amendments  submitted  in  1916.  In  May,  1915,  the  general 

assembly  by  a vote  of  two-thirds  of  each  house,  voted  to  submit 
the  proposed  constitutional  amendment  recommended  by  the  spe- 
cial tax  commission  of  1910.  This  amendment  received  the  votes 
of  35  out  of  51  senators  and  of  130  out  of  153  representatives.  The 
proposed  amendment  read  as  follows : 

“Article  IX,  Section  14.  From  and  after  the  date  when  this  sec- 
tion shall  be  in  force,  the  powers  of  the  general  assembly  over  the 
subject  matter  of  the  taxation  of  personal  property  shall  be  as  com- 
plete and  unrestricted  as  they  would  be  if  sections  one  (1),  three  (3), 
nine  (9),  and  ten  (10)  of  this  article  of  the  constitution  did  not  exist; 
provided,  however,  that  any  tax  levied  upon  personal  property  must  be 
uniform  as  to  persons  and  property  of  the  same  class  within  the  juris- 
diction of  the  body  imposing  the  same,  and  all  exemptions  from  tax- 
ation shall  be  by  general  law,  and  shall  be  revocable  by  the  general 
assembly  at  any  time”. 

This  proposed  amendment  was  voted  on  at  the  general  election  in 
November,  1916.  There  were  656,298  votes  for  the  amendment,  and 
only  295,782  votes  against.  This  was  an  over-whelming  majority  of 
ihe  vote  on  the  proposed  amendment,  and  as  it  was  also  a majority  of 
the  vote  at  the  election  for  members  of  the  general  assemly,  the  state 
canvassing  board  declared  that  the  amendment  was  adopted.  But,  in 
the  case  of  People  v.  Stevenson,  the  Supreme  Court  held  that  a ma- 
jority of  the  total  vote  at  the  election,  and  not  merely  a majority  of 
the  vote  for  members  of  the  general  assembly,  is  required  by  the  con- 
stitutional provision,  and  as  the  affirmative  vote  did  not  meet  this  test, 
it  was  held  that  the  amendment  was  not  adopted.3 

It  is  clear,  however,  from  the  vote  on  this  public  policy  question 
in  1912  and  on  the  proposed  amendment  in  1916  that  a large  majority 
of  those  expressing  an  opinion  were  in  favor  of  changing  the  present 
constitutional  requirement  for  uniform  taxation  of  all  classes  of  prop- 
erty. 

The  proposed  constitutional  amendment  voted  on  in  1916  would 
have  enabled  the  general  assembly  to  deal  with  some  of  the  difficulties 
and  defects  in  the  present  methods  of  taxation.  But  the  change  pro- 
posed was  limited  in  character,  and  not  sufficiently  comprehensive  to 
meet  all  of  the  criticisms  or  to  make  possible  some  methods  of  taxation 
(such  as  a graduated  income  tax)  now  successfully  used  in  other  states. 

Further  comments  and  conclusions  on  constitutional  provisions 
will  be  found  in  chapter  VII  of  this  pamphlet. 


People  v.  Stevenson,  281  111.  17  (1917). 


24? 


VI.  TAXATION  IN  OTHER  STATES 


In  tracing  the  development  of  provisions  on  taxation  in  the  state 
constitutions,  four  periods  may  be  noted:  before  1800,  from  1800  to 
1860 ; from  1860  to  1900 ; and  since  1900.  Up  to  1860  the  general 
movement  was  towards  more  detailed  provisions  requiring  a uni- 
form general  property  tax.  During  the  next  period,  constitutional 
provisions  became  still  more  detailed,  and  some  modifications  of 
the  general  property  tax  were  authorized.  Since  1900  there  has 
been  an  active  movement  for  further  constitutional  changes,  in 
which  there  is  a decided  tendency  towards  a relaxation  of  the  earlier 
provisions. 


Constitutional  provisions  before  1800.  During  the  colonial 
period  there  was  but  little  taxation  and  no  clear  tendency  toward 
.any  definite  system.  Of  the  first  state  constitutions  adopted  during 
the  Revolution,  about  one-half  contained  a provision  that  taxes 
should  not  be  levied  without  the  consent  of  the  people  or  their 
representatives.  Four  states  adopted  provisions  which  mark  the 
beginning  of  the  theory  of  the  uniform  general  property  tax.  The 
Maryland  constitution  of  1776  provided  that  each  person  should 
contribute  his  proportion  according  to  his  actual  wealth  in  real  or 
personal  property.  The  Pennsylvania  constitution  of  1776  con- 
tained a provision  that  each  person  is  bound  to  contribute  his  pro- 
portion to  the  expense  of  protection ; and  the  same  provision  was 
adopted  in  the  Vermont  constitution  of  1777.  The  Massachusetts 
constitution  of  1780  had  a more  definite  provision  giving  the  gen- 
eral court  full  power  and  authority : 

“to  impose  and  levy  proportional  and  reasonable  assessments, 
rates  and  taxes  upon  all  the  inhabitants  of,  and  persons  resident, 
and  estates  lying  within  the  said  Commonwealth ; and  also  to  im- 
pose and  levy  reasonable  duties  and  excises,  upon  any  produce, 
goods,  wares,  merchandise  and  commodities,  whatsoever  brought 
into,  produced,  manufactured  or  being  within  the  same.” 

The  first  of  these  clauses  has  been  held  to  require  a uniform 
rate  of  taxation  on  all  property;  while  the  second  authorizes  other 
duties  and  excises  which  are  not  subject  to  the  rule  of  uniformity. 

In  the  first  constitution  of  Tennessee,  adopted  in  1796,  ap- 
peared the  earliest  provision  that  taxation  should  be  uniform,  but 
with  specific  provisions  which  applied  the  rule  of  uniformity  to 
acreage  and  not  to  value. 


248 


“All  lands  liable  to  taxation  in  this  state,  held  by  deed,  grant 
or  entry,  shall  be  taxed  equal  and  uniform,  in  such  manner  that  no 
one  hundred  acres  shall  be  taxed  higher  than  another,  except  town 
lots  which  shall  not  be  taxed  higher  than  two  hundred  acres  of 
land  each.  No  freeman  shall  be  taxed  higher  than  one  hundred 
acres,  and  no  slave  higher  than  two  hundred  acres  on  each  poll.”  1 


From  1800  to  1860.  During  the  first  half  of  the  nineteenth 
century,  new  and  revised  state  constitutions  gave  more  attention 
to  the  subject  of  taxation.  The  Illinois  constitution  of  1818  con- 
tained a more  positive  requirement  than  in  any  previous  constitu- 
tion that  taxes  should  be  levied  by  valuation  so  that  each  person 
will  pay  in  proportion  to  the  value  of  his  property.  The  Missouri 
constitution  of  1820  had  a similar  provision.  That  of  Maine  in 
1818  and  of  Alabama  in  1819  required  taxes  on  lands  and  real 
estate  to  be  assessed  in  proportion  to  valuation. 

Other  constitutions  adopted  during  this  period  also  contained 
provisions  for  taxation  by  valuation,  with  specifications  as  to  the 
property  to  be  taxed,  and  also  some  provisions  as  to  exemptions. 
In  the  later  years  of  this  period,  new  and  revised  constitutions  con- 
tained longer  and  more  detailed  provisions,  including  restrictions 
on  state  debt,  as  in  the  Illinois  constitution  of  1848.  The  second 
Ohio  constitution  of  1851  had  still  more  explicit  provisions  as  to 
the  taxation  by  a uniform  rule  of  all  moneys,  credits  and  other ' 
intangible  property,  as  well  as  real  and  personal  property.  This 
probably  marks  the  maximum  of  express  constitutional  provisions 
for  a uniform  general  property  tax. 


From  1860  to  1900.  In  the  latter  part  of  the  nineteenth  cen- 
tury the  state  constitutional  provisions  on  taxation  and  finance  be- 
came still  more  detailed.  In  most  states  the  general  property  tax 
remained  the  basis  of  the  tax  system,  and  requirements  for  uni- 
formity were  continued.  But  some  modifications  were  authorized. 
Classification  of  property  for  taxation  was  authorized  in  the  consti- 
tutions of  Pennsylvania  (1873),  Colorado  (1876),  Georgia  (1877), 
and  Delaware  (1897).  Various  forms  of  special  taxes,  usually  in 
addition  to  the  general  property  tax,  were  authorized — such  as  taxes 
on  occupations  and  business,  on  corporations  and  on  inheritances 
and  incomes.  On  the  other  hand,  poll  taxes  were  abolished  in  many 
states ; while  numerous  provisions  relating  to  exemptions  were 
adopted.  Other  provisions  in  a number  of  states  prohibited  the 
surrender  of  the  power  of  taxation,  and  in  some  cases  prohibited 
the  commutation  of  taxes.  Restrictions  on  state  debt  limits  were 
adopted  in  most  states,  and  in  many  states  limits  were  also  placed  on 
municipal  debts.  In  a number  of  states  limitations  on  tax  rates 
were  placed  in  the  constitutions. 

1 Tennessee  Constitution  of  1796,  Art.  I,  Sec.  26. 


249 


Since  1900.  Changes  in  the  provisions  of  state  constitutions 
relating  to  taxation  have  been  proposed  in  large  and  increasing 
numbers  since  1900 ; and  a large  proportion  of  proposed  changes 
have  been  made  by  the  adoption  of  constitutional  amendments  and 
by  new  or  revised  constitutions.  From  1900  to  1906,  52  proposed 
amendments  on  taxation  were  submitted  to  popular  vote,  of  which 
37  were  adopted  and  15  failed.  From  1907  to  1918,  there  have  been 
205  amendments  submitted,  of  which  104  were  adopted  and  101 
failed. 

Constitutional  Amendments  on  Taxation 


Tear. 

Total 

submitted. 

Adopted. 

Failed. 

1900 

11 

8 

3 

1901 

2 

2 

0 

1902 

11 

7 

4 

1903 

3 

2 

1 

1904 

12 

8 

4 

1905 

1 

0 

1 

1906 



12 

10 

2 

1907 

1 

0 

1 

1908 

22 

9 

13 

1910 

25 

15 

10 

1911 

1 

1 

0 

1912 

44 

17 

27 

1913 

6 

3 

3 

1914 

35 

17 

18 

1915 

8 

3 

5 

1916 

28 

15 

13 

1917 

3 

2 

1 

1918 

32 

22 

10 

Total.  . . 

2&7 

141 

116 

This  movement  has  been  widespread.  One  or  more  amendments 
have  been  submitted  in  all  but  six  states  (Vermont,  Connecticut, 
Rhode  Island,  Delaware,  New  Jersey  and  Indiana).  But  some  states 
have  been  much  more  active  than  others.  Proposed  amendments  have 
been  most  numerous  in  Louisiana  (35),  California  (30),  and  Missouri 
(23)  ; and  have  also  been  frequent  in  Oregon  (18),  Utah  (13),  South 
Carolina  (14),  Minnesota  (14)  and  Ohio  (10).  In  Missouri  and 
Minnesota  most  of  the  amendments  proposed  have  failed. 

A large  number  of  these  proposed  amendments  have  been  on 
matters  of  minor  importance,  such  as  changes  in  tax  rates  and  methods 
of  administration,  taxes  for  specific  purposes,  small  changes  in  exempt 
tions,  and  (in  South  Carolina)  relating  to  special  assessments  in 
particular  cities  and  towns.  But  important  changes  in  the  rules  and 
methods  of  taxation  have  also  been  proposed  and  adopted. 

Amendments  or  new  constitutions  authorizing  the  classification 
of  property  for  purposes  of  taxation  have  been  submitted  in  about  20 
states  (in  some  states  several  times),  and  have  been  adopted  in  11 
states:  Minnesota,  Michigan,  Oklahoma,  New  Mexico,  Arizona, 

Louisiana,  Kentucky,  North  Dakota,  South  Dakota,  Maryland  and 
Oregon.2 

3 An  amendment  authorizing  classification  received  an  affirmative  vote  in 
Ohio  in  1918  ; but  was  held  to  conflict  with  another  amendment  to  prevent  double 
taxation  which  had  been  adopted  by  a larger  vote. 


250 


A number  of  states  have  provided  for  more  specific  modifications 
of  the  general  property  tax,  by  provisions  for  exemptions  or  for  spe- 
cial taxation  of  certain  classes  of  property:  Mortgages  have  been 
exempted  in  Utah,  Louisiana,  California,  and  North  Carolina; 
laws  to  prevent  double  taxation  of  mortgages  and  the  prop- 
erty mortgaged  have  been  authorized  in  Ohio ; and  a special  tax  on 
intangible  property  has  been  authorized  in  Maine.  State  income  taxes 
have  been  authorized  in  Virginia,  Wisconsin,  Ohio  and 
Massachusetts ; special  corporation  taxes  in  Ohio,  South 
Dakota  and  Louisiana ; special  methods  of  taxing  mines  in 
Virginia,  Nevada  and  Utah;  and  special  taxes  on  or  exemption  of 
forest  lands  in  Massachusetts  and  Ohio.  Exemptions  have  been  pro- 
vided for  vessels  in  California,  Louisiana  and  Oregon ; for  property 
of  educational  institutions  in  California ; and  for  farm  products  in  the 
hands  of  the  producer  in  Georgia. 

Active  efforts  have  also  been  made  to  obtain  other  and  more 
fundamental  changes  in  taxation.  The  separation  of  state  and  local 
taxation  has  been  authorized  in  Oklahoma  and  more  definitely  estab- 
lished in  California;  but  proposals  for  separation  have  failed  in  other 
states.  The  single  tax  on  land  values  has  been  proposed  in  several 
states  (sometimes  in  connection  with  provisions  authorizing  income, 
excise  and  inheritance  taxes),  but  thus  far  has  not  been  adopted  in  any 
state.  Single  tax  proposals  were  rejected  in  Colorado  (1902),  Oregon 
(1912),  Missouri  (1912  and  1918),  and  California  (1916  and  1918). 
An  amendment  authorizing  local  option  in  taxation  was  adopted  in 
Oregon  in  1910,  but  was  repealed  two  years  later.  California  in  1912 
rejected  local  option  in  taxation. 


Existing  constitutional  provisions.  At  the  present  time  the 
states  may  be  arranged  in  several  groups,  on  the  basis  of  the  degree 
of  legislative  freedom,  especially  from  the  requirement  of  a uniform 
general  property  tax. 

Five  states  have  no  definite  constitutional  restrictions  relating  to 
the  subjects  or  methods  of  taxation,  or  only  brief  and  indefinite 
phrases  which  are  held  by  the  courts  not  to  limit  legislative  discretion. 
These  are:  New  York,  Connecticut,  Rhode  Island,  Vermont  and 

Iowa. 

Fifteen  state  constitutions  now  have  definite  provisions  authoriz- 
ing the  classification  of  property  for  taxation.  These  are : Pennsyl- 

vania (1873),  Colorado  (1876),  Georgia  (1877),  Delaware  (1897), 
Virginia  (1902),  Minnesota  (1906),  Oklahoma  (1907),  Michigan 
(1908),  Arizona  (1911),  North  Dakota  and  New  Mexico  (1914), 
Kentucky  and  Maryland  (1915),  Oregon  (1917),  South  Dakota 
(1918). 

Eight  states  have  constitutional  requirements  for  uniformity  of 
taxation,  which  have  been  construed  by  the  courts  as  permitting  classi- 
fication to  some  extent  at  least,  and  requiring  uniformity  only  for  each 
class.  These  are:  New  Jersey,  North  Carolina,  Florida,  Alabama, 

Mississippi,  Indiana,  Kansas  and  Wyoming. 


Four  states  have  provisions  for  uniformity,  but  also  clauses  which 
seem  to  permit  classification.  These  are:  Missouri  (1875),  Idaho 

and  Montana  (1889),  and  Louisiana  (1916). 

Eight  states  have  provisions  for  uniform  taxation  of  property 
(or  provisions  which  have  been  construed  as  requiring  uniformity) 
supplemented  by  provisions  for  special  taxes  of  certain  kinds.  These 
are:  California,  special  state  taxes  on  corporations,  etc.,  established 

in  1910,  and  separation  of  state  and  local  revenues ; Illinois,  special 
taxes  on  certain  specified  occupations,  businesses  and  franchises  are 
authorized;  Maine,  amendment  of  1913  authorizes  taxation  of  intan- 
gible personal  property  at  special  rate;  Massachusetts,  amendments 
of  1912  and  1917  authorize  special  taxation  of  forests  and  incomes; 
Virginia,  Nevada  and  Utah,  recent  amendments  authorize  special  taxa- 
tion of  mines;  Ohio,  amendment  of  1918  authorizes  laws  to  prevent 
double  taxation  of  mortgages  and  mortgaged  property;  Wisconsin, 
amendment  of  1908  authorizes  special  taxes  on  incomes,  privileges 
and  occupations. 

Eight  states  have  constitutional  provisions  for  uniform  taxation 
which  are  held  to  debar  classification.  These  are : Arkansas, 

Nebraska,  New  Hampshire,  South  Carolina,  Tennessee,  Texas,  Wash- 
ington and  West  Virginia. 

In  an  appendix  to  this  pamphlet  are  printed  a number  of  typical 
constitutional  provisions  on  taxation.  That  of  New  York  represents 
the  states  with  practically  no  specific  provisions  on  taxation : that  of 
Pennsylvania  shows  brief  and  liberal  provisions  authorizing  classifi- 
cation ; those  of  Kentucky,  Maryland  and  South  Dakota  are  more 
detailed  classification  provisions.  The  Wisconsin  provision  specifically 
authorizes  an  income  tax,  and  the  Minnesota  provisions  provide  for 
classification  with  specific  reference  to  gross  earnings  taxes  on  rail- 
roads. The  Ohio  provision  illustrates  the  extreme  form  of  the  require- 
ment of  uniformity,  modified  by  the  amendment  of  1918  to  prevent 
double  taxation  in  connection  with  mortgages ; and  with  this  is  pub- 
lished the  liberal  classification  amendment  voted  on  in  1918.  The 
Illinois  provisions  are  typical  of  the  states  still  requiring  the  uniform 
general  property  tax ; but  authorizing  special  taxes  in  addition.  The 
California  provisions  show  a detailed  system  of  classification  and  of 
segregation  of  state  and  local  revenues. 


Tax  Laws  and  their  Operation.  Some  light  may  be  thrown 
on  the  problem  of  taxation  in  Illinois  by  examining  briefly  some 
features  of  the  tax  laws  and  their  operation  in  other  states,  especially 
those  with  less  restrictive  constitutional  provisions  than  Illinois,  where 
industrial  and  social  conditions  are  comparable  to  those  in  Illinois, 
and  where  recent  changes  in  taxation  have  been  introduced.  For  this 
purpose,  there  will  be  considered  conditions  in  the  large  and  important 
eastern  states  of  New  York,  Pennsylvania,  Massachusetts  and  Mary- 
land ; in  the  middle-western  states  of  Iowa,  Kentucky,  Minnesota  and 
Wisconsin ; and  in  California. 


252 


These  states  present  a variety  of  illustrations  of  different  methods 
of  taxation,  involving  departures  from  the  uniform  general  property 
tax.  In  most  cases  a much  larger  use  is  made  of  taxes  on  corporations 
for  state  revenue  than  in  Illinois  before  1919 ; and  special  taxes  on 
mortgages,  intangible  property  and  incomes  are  successfully  used  in 
place  of  attempting  to  tax  intangible  property  under  the  general 
property  tax.  The  tax  laws  of  these  states  will  indicate  some  of  the 
methods  which  could  be  considered  in  Illinois,  if  the  restrictive  pro- 
visions of  the  present  constitution  were  relaxed  or  removed. 


New  York.  The  constitution  of  New  York  state  contains 
practically'  no  restrictions  on  the  legislature  in  matters  of  taxation, 
but  before  1880,  the  general  property  tax  was  in  use  as  the  principal 
source  of  state  and  local  revenue.  Serious  complaints  as  to  the  escape 
of  personal  property  from  taxation,  especially  in  the  case  of  corpora- 
tions, led  to  the  introduction  in  1880  of  new  franchise  taxes  on  cor- 
porations. Since  then  corporation  taxes  have  been  greatly  developed; 
and  in  addition  an  elaborate  series  of  special  taxes  has  been  estab- 
lished— including  an  inheritance  tax,  an  excise  tax,  a motor  vehicle 
tax,  a tax  on  transfers  of  shares  of  stock,  a mortgage  recording  tax, 
a tax  on  secured  debts  or  investments,  and  (in  1919)  a tax  on  incomes. 

Corporation  taxes  include  organization  and  license  fees,  an  annual 
franchise  tax  on  capital  stock,  additional  taxes  on  certain  classes  of 
corporations  based  on  gross  earnings  and  dividends ; and  a tax  on  the 
income  of  other  business  corporations.  About  30  per  cent  of  the  gen- 
eral revenue  of  the  state  has  been  received  from  corporation  taxes. 
Other  important  sources  of  state  revenue  have  been  the  excise,  inheri- 
tance and  stock  transfer  taxes,  and  automobile  license  fees.  For 
several  years  the  direct  property  tax  was  almost  eliminated  for  state 
revenue ; but  in  recent  years  about  20  per  cent  of  the  state  general 
revenue  is  from  this  source. 

The  mortgage  recording  tax  is  at  the  rate  of  five  mills  on  the 
dollar;  and  the  net  revenue  is  divided  equally  between  the  state  and 
county. 

The  tax  on  investments  is  at  the  rate  of  20  cents  per  annum  on 
each  $100  of  face  value.  This  applies  to  serial  bonds,  notes,  deben- 
tures, etc.,  except  bonds  secured  by  mortgage  on  real  property  wholly 
within  the  state. 

A tax  of  three  per  cent  on  the  income  of  mercantile  and  manufac- 
turing corporations  was  imposed  in  1917,  corporations  subject  to  this 
tax  being  exempt  from  taxation  on  their  personal  property,  and  from 
the  capital  stock  and  the  annual  franchise  tax.  Two-thirds  of  the 
revenue  from  this  tax  goes  to  the  state  and  one-third  to  the  localities. 
In  1918  this  tax  yielded  approximately  $18,000,000. 

In  1919,  this  corporation  income  tax  was  extended  to  all  “busi- 
ness corporations” — applying  to  all  corporations  except  public  service, 
insurance  and  financial  companies.  The  rate  was  increased  to  4 l/i 
per  cent. 


253 


At  the  same  time  a new  tax  on  individual  incomes  was  imposed, 
at  rates  from  1 to  3 per  cent  on  the  total  income  in  excess  of  the 
exemptions  allowed  under  the  United  States  income  tax  law.  The 
revenue  from  this  tax  is  to  be  divided,  one-half  to  the  state,  and  one- 
half  to  the  towns  and  cities  in  proportion  to  the  assessed  valuation  of 
real  estate.  Those  subject  to  the  income  tax  are  exempt  from  taxa- 
tion on  certain  intangible  personal  property  (money,  bonds,  choses  in 
action  and  shares  of  stock). 


New  York  State  Revenues,  Fiscal  year  ended  June  30,  1918. 


Direct  State  Tax 

Corporation  Taxes  

Franchise  Taxes  

Excise  Taxes  

Inheritance  Tax  

Fees  of  Public  Officers 

Stock  Transfer  Tax 

Automobile  licenses  and  fines 

Investment  tax  

Organization  tax  

Mortgage  Tax  

Sundry  and  miscellaneous.  . 


$13,203,046 

12,489,782 

9,588,856 

11,045,392 

11,433,400 

3.184.490 
5,312.032 
2,723,704 
1,399,381 

819.365 

939,866 

4.218.490 


Total  general  fund  receipts 


$76,357,804 


Common  school  fund 832,156 

U.  S.  Deposit  fund 322,326 

Court  and  trust  funds . 67,555 

Literature  fund  20,912 

State  forest  preserve  fund 200,406 

Public  Highways  5,945,592 

Palisades  Interstate  Park  Fund 316,022 

Public  Administrator  17,827 

Cornell  University  Fund 50,000 

Canal  Fund  13,845,867 


Aggregate  receipts 


$97,955,822 


Pennsylvania.  Under  the  Pennsylvania  constitution,  taxes 
must  be  levied  and  collected  under  general  laws,  and  must  be  uniform 
upon  the  same  class  of  subjects  within  the  territorial  limits  of  the 
authority  levying  the  tax. 

The  uniform  general  property  tax  has  never  been  imposed  in 
Pennsylvania.  Real  estate  is  subject  to  county  and  other  local  taxes, 
as  is  certain  specified  classes  of  personal  property ; but  there  is  no 
state  tax  on  real  estate.  About  two-thirds  of  the  state  revenue  is 
collected  from  taxes  on  corporations.  There  is  also  a state  tax  on 
collateral  inheritances,  a system  of  business  licenses,  motor  licenses 
and  some  other  special  taxes  and  fees. 

Corporation  loans  and  other  intangible  property  are  subject  to 
a uniform  tax  of  four  mills  on  the  dollar  of  fair  cash  valuation.  The 
tax  on  corporate  loans  is  deducted  from  the  interest  by  the  various 
corporations  (public  and  private)  and  paid  directly  to  the  state  treas- 
ury and  accrues  to  the  state.  The  tax  on  other  intangible  property 
(money  at  interest,  credits,  mortgages,  and  other  securities)  is  col- 
lected by  the  counties.  Before  1914,  the  proceeds  of  this  tax  wejre 
paid  into  the  state  treasury,  and  three-fourths  of  the  amount  was  re- 
turned to  the  counties ; but  since  then  the  whole  proceeds  are  retained 
for  county  purposes. 


254 


The  following  table  shows  the  tax  receipts  from  corporate  loans 
and  the  assessment  and  tax  receipts  from  other  intangible  personalty 
for  a series  of  years : 


Receipts  from  taxes  on  corporate  loans  and  other  intangible  property 

in  Pennsylvania. 


Tax  Receipts. 

Assessment  of 

Year. 

Corporate 

Loans. 

Other  intang- 
ible per- 
sonalty. 

other  intan- 
gible per- 
sonalty. 

1880 

$ 300,453 

$ 423,676 

$ 111,362,731 

1885  

555,323 

620,971 

145,300,000 

1890  

696,441 

923.938 

546,965,902 

1895  

822,381 

2,307,936 

622,136.295 

1900  

1,118,012 

3,157,026 

722.860,000 

1905 

1,677,185 

3,446,906 

885,240,000 

1910 

2.230,265 

4,469,834 

1,184,300,000 

1913 

1916 

2,300,823 

3,247,983 

5,312,175 

1,402,500,000 

It  will  be  noted  that  the  assessment  and  tax  receipts  from  intan- 
gible property  increased  rapidly  after  1885 ; and  the  tax  receipts  from 
corporate  loans  have  also  gained  steadily.  In  1913,  the  last  year  when 
the  tax  from  intangible  personalty  was  paid  into  the  state  treasury, 
the  total  receipts  from  both  sources  aggregated  $7,600,000,  repre- 
senting an  aggregate  of  nearly  $2,000,000,000  of  such  property.  This 
amounts  to  about  one-half  of  the  real  estate  subject  to  taxation  in 
Pennsylvania. 

Since  1913  the  tax  receipts  from  corporate  loans  have  increased 
more  rapidly,  to  $3,247,983  in  1916.  It  is  probable  that  the  local  tax 
on  intangible  personalty  (which  is  not  now  reported  in  the  reports  of 
the  Auditor  General)  has  also  continued  to  increase. 


Pennsylvania  State  Revenue,  year  ending  November  go,  igi6. 


I.  From  corporations  and  associations : 

National  Banks  . ...$  947,239 

State  Banks  152,900 

Incorporated  Saving’s  Institutions 52.269 

Trust  Companies  1,297,929 

Building  and  Loan  Associations 23,310 

Interest  on  deposits 47,058 

Foreign  Insurance  Premiums 1,838,502 

Capital  Stock  tax 14,233,932 

Tax  on  corporation  loans....'. 3,247,983 

Tax  on  Gross  Receipts 2,164,103 

Tax  on  Gross  Premiums 130,578 

Bonus  on  charter 720.635 

Accrued  interest  and  penalties 64,143 

Loans  of  Counties,  Municipalities  and  School  Dis- 
tricts   727,970 


II.  From  and  through  public  officers:  $23,127,846 

Tax  on  writs,  wills,  deeds,  etc $ 233,089 

Tax  on  collateral  inheritances 2,598,084 

Pamphlet  laws  60 

Receipts  from  licenses 3,511.238 


III.  From  other  sources : 

Motor  (registration)  licenses... 

State  Highway  construction 

Minor  taxes,  fees  and  licenses 

IV.  Miscellaneous  


$2,448,924 

735,140 

938,673 


$6,342,471 

$4,122,737 

$548,279 


Total 


$36,663,039 


255 


Maryland.  The  constitution  of  Maryland  from  its  first  adop- 
tion in  1776  contained  a provision  that  every  person  ought  to  con- 
tribute his  proportion  of  public  taxes  according  to  his  actual  wealth 
in  real  or  personal  property.  In  1915,  a constitutional  amendment 
was  adopted  definitely  authorizing  the  classification  of  property  for 
taxation,  to  be  uniform  within  the  taxing  district  and  upon  the  class 
of  property  subject  to  the  tax  levy. 

Before  the  adoption  of  this  amendment,  a special  tax  was  im- 
posed in  1896,  on  intangible  personal  property,  including  all  bonds 
and  certificates  of  indebtedness  issued  by  corporations  and  stocks  of 
corporations.  Ordinary  mortgages,  book  accounts  of  merchants  and 
savings  accounts  are  not  included.  The  tax  was  at  first  levied  at  the 
uniform  rate  of  30  cents  on  the  $100  (3  mills  on  the  dollar),  for  local 
purposes,  plus  the  direct  state  property  tax,  which  varied  from  16  to 
31  cents.  Since  1914,  a uniform  rate  of  45  cents  is  imposed,  of  which 
15  cents  is  for  the  state  and  30  cents  for  local  purposes.  Bank  shares 
and  savings  banks  are  subject  to  another  special  tax. 

The  financial  results  of  the  special  tax  on  intangible  property  is 
shown  in  the  following  table,  giving  the  assessed  valuation,  tax  rate 
and  revenue  for  1896  (the  last  year  under  the  general  property  tax), 
1897  (the  first  year  under  the  special  tax),  1915  and  1918. 


Year.  Valuation.  Rate  per  $100.  Revenue. 

1896  $ 6,000,000  $2.17%  $ 130,650 

1897  58,703,795  .47%  280,310 

1915  208,431,712  .45  937,942 

1918  270,915,395  .45  1,219,119 


Under  the  special  tax,  the  assessed  valuation  of  intangible  pro- 
perty in  1897  was  nearly  ten  times  that  of  the  preceding  year  when 
subject  to  the  general  property  tax,  and  the  revenue  was  more  than 
doubled.  Since  then,  these  figures  have  increased  more  than  fourfold. 

In  1918  the  assessed  valuation  of  intangible  personal  property  was 
25  per  cent  of  the  assessed  valuation  of  real  and  personal  property  sub- 
ject to  the  general  tax.  About  half  of  the  state  revenue  is  derived 
from  a state  tax  on  real  and  personal  property,  levied  to  meet  expenses 
in  connection  with  state  loans  and  public  schools.  Other  state  revenues 
are  from  taxes  on  gross  receipts,  insurance  companies,  collateral  in- 
heritances and  motor  vehicle  and  other  licenses. 


Massachusetts.  The  Massachusetts  constitution  of  1780  pro- 
vided for  proportional  taxes  on  property,  and  also  for  reasonable 
duties  and  excises.  A constitutional  amendment,  adopted  in  1915, 
definitely  authorized  an  income  tax,  to  be  levied  at  a uniform  rate 
upon  incomes  from  the  same  class  of  property,  and  for  the  exemption 
from  proportional  taxes  of  property  the  income  from  which  should 
be  taxed. 

State  revenues  are  derived  mainly  from  a state  tax  on  general 
property,  corporation  and  inheritance  taxes  and  sundry  licenses  and 
fees,  as  shown  below : 


256 


Massachusetts  State  Revenue,  Year  ending  November  go,  1917. 


State  Tax  $10,921,240 

Corporation  taxes  5,745,058 

Inheritance  taxes  3,964,593 

Special  assessments  765,475 

Court  fines  and  penalties 94,712 

Unclaimed  deposits  and  escheats 216,497 

Liquor  licenses  747,662 

Other  licenses  2,174,784 

Fees  475,680 

Reimbursement  for  services 1,324,614 

Sales  907,360 

Rents  164,886 

Interest  on  deposits 248,818 

Income  of  invested  funds 44,576 

Gifts  and  grants  78,963 

Miscellaneous  35,344 


Total  revenue  $27,910,264 

Following  the  adoption  of  the  income  tax  amendment,  a classified 
income  tax  was  imposed  by  the  state  in  1916,  the  proceeds  to  be  dis- 
tributed to  the  cities,  towns  and  other  local  districts.  There  is  a 6 
per  cent  tax  upon  the  income  from  intangible  property,  a 3 per  cent 
tax  upon  dealings  in  intangible  property,  and  a tax  of  1^4  per  cent 
upon  incomes  from  annuities,  trades  and  professions.  Income  from 
real  estate,  dividends  of  Massachusetts  corporations,  savings  bank  de- 
posits, and  from  mortgages  on  Massachusetts  real  estate  are  not  sub- 
ject to  the  income  tax,  as  the  property  from  which  the  income  is 
derived  as  otherwise  taxed.  Property,  the  income  from  which  is  taxed, 
is  exempt  from  other  general  taxation. 

From  the  proceeds  of  the  income  tax  local  communities  are  first 
reimbursed  for  the  loss  due  to  the  exemption  of  intangible  property; 
and  the  excess  of  income  tax  collections  is  also  distributed  to  the  local 


treasuries. 

The  financial  results  of  this  tax  for  the  years  1917  and  1918  are 
shown  below. 


Assessments  (less  abatements) 
Collections  (less  refunds) 


1917  1918 

$12,299,958  $14,387,339 

12,245,542  14,077,801 


Uncollected  54,416 

Reimbursement  for  personal  property  tax 8,135,769 

Distribution  of  excess 3,547,000 

War  tax,  10  per  cent,  1918 

Net  administration  cost 311,946 

Available  for  distribution 250,826 


309,538 

7.967,775 

4,300,000 

1,237,057 

317,292 

255,677 


Total  $12,299,958  $14,387,339 

From  the  distribution  of.  the  excess  over  the  reimbursement  for 
the  personal  property  tax,  it  appears  that  the  income  tax  has  yielded 
from  $3,500,000  to  $4,500,000  more  than  the  former  direct  tax  on 
intangible  property.  The  tax  commissioner  reports  a general  feeling 
of  satisfaction  with  the  new  tax.  Those  with  large  incomes  are  pay- 
ing more  than  before ; and  many  who  paid  nothing  before  are  now 
contributing  their  share;  while  many  of  small  means  are  given  relief 
by  the  exemptions  for  small  incomes  allowed  under  the  law. 


Iowa.  The  constitution  of  Iowa  does  not  require  a uniform 
general  property  tax;  but  the  state  tax  laws  have  imposed  a general 


257 


property  tax  with  some  modifications.  Beginning  in  1912,  a special 
tax  was  imposed  on  moneys  and  credits,  at  the  rate  of  five  mills  on 
the  dollar  of  actual  value.  Other  real  and  personal  property  is  as- 
sessed at  one- fourth  of  actual  value.  The  tax  is  levied  by  the  county 
boards  of  supervisors  and  collected  by  the  county  treasurer;  and  the 
proceeds  are  divided  on  the  same  basis  as  other  taxes. 

In  1911,  the  last  year  when  moneys  and  credits  were  listed  with 
other  personal  property,  the  total  of  all  personal  property  was  $134,- 
452,985.  Since  that  year  the  valuation  of  moneys  and  credits  and  of 
other  personal  property  have  been  as  follows: 


Tear. 

Moneys  and  cred- 
its (actual  value). 

Other  personal 
property  (listed 
at  one-fourth 
value). 

1912 

$188,773,775 

207,233,866 

250,218,178 

270.506,356 

275,361,750 

329,954,615 

$ 93,762,629 
101,848,015 
110,698,770 
112,736,012 
115,506,427 
127,506,861 

1913  

1914  

1915 

1916 

1918 

Kentucky.  Before  1915,  the  constitution  of  Kentucky  required 
a uniform  general  property  tax.  In  that  year  a constitutional  amend- 
ment was  adopted  authorizing  the  classification  of  property  for  taxa- 
tion. In  1917  changes  were  made  in  the  tax  laws  and  a state  tax  com- 
mission was  established  with  general  supervisory  power  over  assess- 
ments. The  state  tax  rate  was  reduced  from  55  to  40  cents  on  the 
$100.  The  rate  on  bank  deposits  and  live  stock  was  reduced  to  10 
cents  on  the  $100.  Money  and  credits  were  exempted  from  local 
taxation,  and  severe  penalties  were  provided  for  their  concealment 
from  state  assessment.  A mortgage  recording  tax  of  20  cents  on  the 
$100  was  imposed. 

The  results  of  the  first  year  under  the  new  laws  are  shown  in  the 
following  statistics  from  the  report  of  the  state  tax  commission  for 
1918. 

Assessments  and  State  Taxes  in  Kentucky. 


Assessed  valuation. 

State 

Taxes. 

1917. 

1918. 

Increase. 
Per  cent. 

1917. 

1918. 

Lands  . . 

$391,694,806 

$545,453,422 

39.2  1 

$3,926,094 

$3,548,183 

Town  lots 

Tangible  personal 

322,140,632 

341,592,377 

6.03  r 

708,811 

931,233 

property  

Intangible  person- 

128,692,966 

. 232,808,251 

80.8 

377,579 

985,393 

al  property 

Bank  sharps 

68,650,880 

246.348,379 

37,775,621 

179.143,180 

258.8 

Bank  deposits 

11,277,198 

1,488.5 

62.024 

179,143 

Total  

$922,456,481 

$1,583,121,230 

71.6 

258 


It  will  be  noted  that  real  estate  paid  about  10  per  cent  less  in 
state  taxes  in  1918  than  in  1917.  Taxes  on  tangible  personal  property 
were  increased  about  30  per  cent.  The  assessment  of  intangible  per- 
sonal property  increased  about  threefold,  and  the  state  taxes  on  such 
property  nearly  trebled.  The  assessment  of  bank  deposits  increased 
about  15  times,  and  at  the  low  rate  of  10  cents  on  the  $100  the  state 
revenues  from  this  source  about  trebled. 


Minnesota.  The  constitution  of  Minnesota,  as  adopted  in 
1857,  contained  provisions  for  uniform  taxation,  and  specifically  pro- 
vided for  the  taxation  of  money,  credits  and  investments.  But  rail- 
roads have  been  taxed  on  the  basis  of  gross  earnings  since  the  terri- 
torial charters;  and  this  method  was  recognized  by  a constitutional 
amendment,  adopted  in  1871  which  provided  for  a referendum  on 
laws  providing  for  gross  earnings  taxes  on  railroads.  Since  then 
gross  earnings  taxes  have  been  established  for  most  public  service 
companies,  except  those  of  a local  character. 

In  1906  a classification  amendment  was  adopted,  with  the  follow- 
ing provisions : “The  power  of  taxation  shall  never  be  surrendered, 

suspended  or  contracted  away.  Taxes  shall  be  uniform  upon  the 
same  class  of  subjects,  and  shall  be  levied  and  collected  for  public 
purposes  . . In  1907  a state  tax  commission  was  established, 

which  at  first  gave  special  attention  to  the  taxation  of  mines  and  min- 
eral lands.  In  1907  a mortgage  recording  tax  was  imposed  in  lieu  of 
the  taxation  of  mortgages  as  property;3  and  in  1911  a tax  of  3 mills 
on  the  dollar  was  imposed  on  moneys  and  credits,  which  were  at  the 
same  time  exempted  from  the  general  property  tax. 

In  1913  a general  classification  act  was  passed,  placing  property 
subject  to  ad  valorem  taxation  into  four  classes,  each  assessed  on  a 
different  basis,  as  follows:  Class  1 (iron  ore  mined  and  unmined) 

is  assessed  at  50  per  cent  of  full  value;  Class  2 (household  goods) 
assessed  at  25  per  cent  of  full  value ; Class  3 (most  tangible  personal 
property  and  unplatted  lands)  assessed  at  33 ys  per  cent  of  the  full 
value;  and  Class  4 (urban  real  estate,  bank  stock,  and  certain  struc- 
tures and  equipment  on  public  utility  property)  assessed  at  40  per 
cent  of  full  value. 

The  financial  results  of  the  changes  in  the  taxation  of  mines, 
mortgages  and  money  and  credits  are  shown  in  the  following  tables: 


Taxation  of  Mines. 

Tear.  Assessed  valuation.  State  taxes. 

J 906 
1907 
1910 
1917 


$ 64,486,409 
191,706.682 
224,669,845 
296,126,032 


> 179,272 
671,489 
609,984 
1,505,761 


3 The  mortgage  tax  was  at  first  50  cents  on  the  $100.  Later  the  rate  was 
changed  to  15  cents  on  mortgages  for  not  more  than  5 years,  and  25  cents  on  mort- 
gages for  more  than  5 years.  The  revenue  is  divided  between  the  state,  the 
county,  and  other  local  districts  in  which  the  real  estate  is  situated. 


259 


Taxation  of  Mortgages,  and  Money  and  Credits. 


Money  and  Credits. 

Mortgage 
tax  collec- 
tions. 

No. 

Assessed. 

Assessment. 

Revenue. 

1909 

$385,910 

509,542 

522,108 

344,412 

312,893 

1910 

6,200 

41,439 

87,638 

98,502 

$ 13,919,806 
115.481,807 
284,968,875 
330,300,219 

5379,754 

346,445 

854,907 

990,900 

1911 

1917 

1918 

The  exemption  from  property  taxes  of  mortgages  on  which  the 
mortgage  tax  is  paid  caused  some  reduction  of  personal  property 
assessments,  estimated  at  about  $2,000,000,  on  which  the  taxes  would 
have  been  about  $60,000 — about  one-fifth  of  the  revenue  received 
from  the  mortgage  tax.  The  revenue  from  the  3 mill  tax  on  money 
and  credits  soon  exceeded  that  received  under  the  general  property 
tax  and  has  steadily  increased ; while  the  burden  has  been  more 
equitably  distributed  among  the  owners  of  such  property,  as  shown  by 
the  great  increase  in  the  number  of  assessments. 

The  general  system  for  the  classification  of  tangible  property  for 
taxation  is  reported  by  the  Minnesota  tax  commission  to  have  given 
general  satisfaction,  and  to  have  secured  a reasonably  accurate  full 
value  appraisement  as  a basis  of  taxation. 

The  principal  sources  of  state  revenue  in  Minnesota  for  the  years 
1902  and  1918  are  shown  in  the  table  below : 


Minnesota  State  Revenues. 


From  taxes: 

General  property  

Railroads  

1902. 

, ...  1.659,296 

1918. 

$6,903,024 

6,237,571 

425,362 

620,934 

19,643 

873,122 

25,622 

18,134 

34,115 

Other  public  service  Cos 

Insurance  Companies 

Vessel  tonnage  

Inheritance  

100,786 

216,515 

9,791 

. ...  6,077 

Liquor  Licenses  

Mortgage  tax  (direct  state  collections  only) . . . . 
Fire  marshal  

Total  taxes  

From  State  institutions 

From  departments  

Miscellaneous  

$3,834,057 

919,415 

412,177 
. . . . 2,339,793 

$15,157,531 

5,628,363 

2.589,137 

5,008,264 

$28,383,296 

Grand  Total  

Wisconsin.  The  constitution  of  Wisconsin  before  1908  con- 
tained only  the  following  provision  on  taxation : “The  rules  of 

taxation  shall  be  uniform,  and  taxes  shall  be  levied  upon  such  pro- 
perty as  the  legislature  may  provide.”  The  general  property  tax  was 
however,  established,  except  for  public  service  corporations  which 
before  1899  were  taxed  on  the  basis  of  gross  receipts.  Beginning  in 
1899,  the  taxation  of  public  service  corporations  was  placed  on  an  ad 
valorem  basis;  but  the  assessments  are  made  by  the  state  tax  com- 


260 


mission,  and  on  these  assessments  the  average  rate  of  taxation  is 
imposed  by  the  state.  There  is  also  an  inheritance  tax,  business  and 
other  licenses,  and  miscellaneous  revenues. 

An  amendment  to  the  state  constitution,  adopted  in  1908,  pro- 
vided that : “Taxes  may  also  be  imposed  on  incomes,  privileges  and 
occupations,  which  taxes  may  be  graduated  and  progressive,  and 
reasonable  exemptions  may  be  provided.”  In  1911  an  income  tax 
was  substituted  for  the  general  property  tax  upon  intangible  and  some 
classes  of  tangible  personal  property.  Rates  are  graduated  for  indi- 
viduals and  partnerships,  ranging  from  1 to  6 per  cent,  with  exemp- 
tions for  small  incomes.  This  tax  is  assessed  by  the  state,  and  the  net 
proceeds  (less  personal  tax  offsets)  are  apportioned  as  follows:  10 

per  cent  to  the  state,  20  per  cent  to  the  county,  and  the  balance  to  the 
city,  village  or  town  in  which  the  tax  was  assessed,  levied  and  collected 
— except  that  when  this  balance  exceeds  2 per  cent  of  the  equalized 
valuation  of  a city,  village  or  town,  the  excess  is  paid  to  the  county 
to  be  distributed  to  the  several  cities,  villages  and  towns  of  the  county 
according  to  their  school  population. 

The  financial  results  of  the  Wisconsin  income  tax  are  shown  in 
the  table  below : 


Year. 

Total  in- 
come tax 
assessed. 

Personal 
tax  offsets. 

Collections. 

Delin- 

quent. 

1912 

$ 3.482,883 

$1,609,711 

$1,631,413 

$241,758 

1913 

4,084,447 

1,895,327 

1,935,846 

251,326 

1914 

4,145,676 

1.987,904 

2,002,212 

155,559 

1915 

3,837,370 

1,825,641 

1,906,441 

105,286 

1916 

5,328.442 

2,211,606 

2,988,766 

128,069 

1917 

9,482,620 

3,307,435 

6 037,719 

137,465 

1918 

11,784,151 

4,707,188 

6,951,482 

125,480 

The  taxes  lost  on  personal  property  due  to  the  exemption  of  small 
incomes  have  been  estimated  at  $700,000  a year.  The  additional 
revenue  from  the  income  tax  was  thus  from  twice  to  three  times  as 
much  as  the  loss  from  exempted  personal  property  for  the  first  four 
years;  and  very  much  larger  in  the  subsequent  years.  In  the  last 
three  years  both  the  tax  assessed  and  the  net  collections  have  shown 
a remarkable  increase.  More  than  a third  of  the  total  income  tax 
assessments  and  a considerably  larger  proportion  of  the  collections 
are  in  Milwaukee  county,  which  has  about  one-fifth  of  the  total  real 
^estate  assessment. 

The  following  table  gives  the  sources  of  public  revenue  in  Wis- 
consin for  the  fiscal  years  1912  and  1918,  for  the  state  government 
and  for  the  aggregate  of  state  and  local  governments.  It  will  be  noted 
that  more  than  half  of  the  state  tax  revenue  was  from  special  pro- 
perty and  business  taxes  (from  public  service  and  financial  com- 
panies), and  that  the  proportion  of  such  taxes  has  increased  somewhat 
since  1912.  The  additional  state  revenue  from  the  income  tax  is 
about  5 per  cent  of  the  state  tax  revenue.  The  state  general  property 
tax  has  increased  at  a smaller  rate  than  the  total  state  tax  revenue,  and 


261 


much  less  than  the  total  state  revenue.  In  the  total  of  state  and  local 
revenues,  the  additional  revenue  from  the  income  tax  is  about  7 per 
cent  of  the  total  tax  revenue. 


Wisconsin  State  and  Local  Revenues , Fiscal  years  ending  in  1913 

and  1918. 


State. 

Total  State  and  local. 

1912. 

1918. 

1912. 

1918. 

General  property  tax 

Special  property  and  busi- 

tcLX6S 

$3,739,588 

4,546,143 

783,528 

$4,797,847 

6,334,900 

517.358 

616,102 



Tnhpri  tanpp  fay 

Income  tax  



Total  taxes  

Special  Assessment  taxes.  . 

Licenses  and  permits 

Grants  (U.  S.)  and  gifts.  . . . 

Other  general  revenue 

Total  general  revenue 

Commercial  revenue  

Loans  

Investments  

Trust  receipts  

$9,069,260 

573,084 

113,115 

$12,266,208 

2,534,815 

189,176 

461 

$40,525,650 

1,136,537 

2,968,867 

169,594 

308,875 

$61,697,840 

2,278,048 

4,579.651 

303.487 

356,815 

$9,755,459 

1,3453,768 

100,000 

945,888 

$14,990,662 

3,079,480 

150,000 

1,367.497 

106,817 

519 

$45,109,523 

4,861,505 

7,460,294 

945,888 

$69,215,843 

9,916,269 

12,248.338 

1,525,795 

1,930,285 

1,576,341 

Miscellaneous  

Total  

Transfers  between  civil  di- 
visions   

Grand  Total  

513,525 

$12,165,117 

642,378 

$19,694,976 

1,479,966 

$58,890,737 

32,938,749 

$96,412,872 

49,588,168 

$12,807,495 

$21,174,943 

$91,829,486 

$146,001,041 

California.  Taxation  in  California  in  recent  years  illustrates 
the  working  of  a constitutional  separation  of  state  and  local  taxes. 
Until  1910,  the  general  property  tax  was  in  use  in  California  for  both 
state  and  local  revenues.  In  that  year,  after  an  investigation  for  six 
years,  a constitutional  amendment  was  adopted,  which  provided  for 
state  taxes  (based  mainly  on  gross  earnings)  on  certain  classes  of 
public  service  corporations,  insurance  companies  and  banks,  and  ex- 
empted from  local  taxation  the  property  of  such  public  service  cor- 
porations and  the  capital  stock  of  banks.  Definite  rates  for  the  state 
taxes  were  named  in  the  constitutional  provision ; and  these  rates  could 
only  be  changed  by  a two-thirds  vote  of  both  houses  of  the  legislature. 

The  centralized  state  assessment  of  certain  properties  has  been 
a distinct  improvement,  in  securing  a more  equitable  and  a more  com- 
plete valuation  than  by  local  assessment.  The  original  rates  for  state 
taxes,  however,  soon  proved  inadequate ; but  by  increasing  the  rates 
sufficient  revenue  has  been  secured. 

On  the  other  hand,  the  new  system  has  not  resulted  in  equalizing 
the  burdens  of  taxation,  either  as  between  the  corporations  and  other 
tax  payers,  or  as  between  the  various  corporations ; nor  has  it  cor- 
rected the  evil  of  undervaluation  in  local  assessments.  State  revenues 


262 


have  been  made  less  flexible,  yet  the  absence  of  a direct  state  tax  has 
removed  a check  on  increasing  expenditures ; while  fhe  loss  to  local 
districts  from  the  exemption  of  local  property  from  local  taxation 
was  not  equitably  adjusted. 

A special  tax  commission  presented  a report  in  1917  calling  at- 
tention to  these  difficulties,  and  recommended  changes  both  in  the  tax 
laws  and  the  constitutional  provisions,  especially  noting  the  difficulties 
caused  by  the  detailed  and  specific  requirements  in  the  constitution, 
and  advocating  giving  greater  freedom  to  the  legislature  in  matters 
of  taxation,  subject  to  a referendum. 


263 


VII.  COMMENTS  AND  CONCLUSIONS  ON  TAXATION 

Many  other  variations  in  methods  of  taxation  are  to  be  found  in 
the  tax  laws  of  other  states  and  countries ; and  still  other  methods 
have  been  proposed  at  different  times  and  places.  It  is  impossible  to 
examine  in  detail  all  of  the  various  methods  and  proposals ; but  a 
brief  mention  may  be  made  of  some  which  are  likely  to  be  actively 
discussed. 


Single  Tax.  One  proposal  vigorously  advocated  for  many 
years  is  that  for  the  single  tax  on  land  values,  which  aims  ultimately 
at  exempting  from  taxation  all  personal  property  and  improvements 
on  lands,  as  well  as  all  forms  of  indirect  taxation.  This  proposal  has 
been  proposed  primarily  as  a theory  of  social  reform*;  but  the  fiscal 
policy  involved  has  one  point  of  similarity  to  that  of  the  uniform  gen- 
eral property  tax,  in  assuming  that  an  ideal  system  of  taxation  can 
be  based  on  a single  principle ; and  the  most  ardent  supporters  of  the 
single  tax  also  agree  with  the  conservative  supporters  of  the  uniform 
general  property  tax  in  urging  that  their  particular  system  be  defi- 
nitely provided  for  in  the  constitution. 

The  single  tax  has  never  been  applied  in  a complete  and  thorough 
going  manner.  To  provide  for  it  in  the  constitution  as  the  sole 
method  of  taxation  would  be  open  to  the  same  fundamental  objec- 
tion as  is  made  to  the  requirement  for  a uniform  general  property 
tax,  that  this  will  tie  the  hands  of  the  legislature,  and  prevent 
changes  in  methods  of  taxation  which  may  be  needed  to  meet 
new  conditions  and  the  fiscal  needs  of  the  government.  It  is 

also  urged  that  it  involves,  in  principle,  the  confiscation  of  existing 
property  rights,  and  is  in  fact  in  direct  antagonism  to  the  institution 
of  private  property. 

Various  other  proposals  have  been  made  from  time  to  time,  based 
on  a partial  acceptance  of  single  tax  views,  which  have  been  supported 
by  less  radical  groups,  and  also  by  some  pronounced  single  taxers  as 
steps  toward  their  complete  program.  Such  proposals  include  the  ex- 
emption of  personal  property  from  direct  taxation,  the  partial  or  grad- 
ual exemption  of  improvements  on  land,  and  the  taxation  of  the  in- 
crement of  land  values.  Several  constitutional  amendments  have  been 
submitted  in  American  states  for  land  value  taxation,  combined  with 
income,  inheritance  and  franchise  taxes.  Proposals  for  complete  local 
option  in  taxation  have  also  been  made,  with  a view  to  securing  the 
adoption  of  the  single  tax  in  certain  local  districts ; though  the  single 
taxer  would  oppose  local  option,  if  the  single  tax  could  be  applied  to  a 
whole  state  or  the  nation. 


264 


Some  of  these  proposals  merit  consideration.  Exemptions  of 
small  amounts  of  personal  property  and  of  small  incomes  are  not  un- 
common in  existing  tax  laws,  and  in  the  actual  practice  of  assessors  in 
Illinois ; and  less  frequently  a particular  class  of  intangible  property 
(as  mortgages)  has  been  exempted,  so  as  to  avoid  double  taxation. 
Exemptions  of  intangible  property  from  local  taxation  may  also  be  a 
convenient  method  in  working  out  a partial  separation  of  state  and 
local  sources  of  revenue. 

• Exemption  of  buildings  and  improvements  has  been  applied  on  a 
considerable  scale  in  a number  of  new  and  rapidly  growing  communi- 
ties in  western  Canada.  Investigation  of  the  results  indicates  that 
under  such  conditions,  this  has  not  proven  disastrous ; and  in  some 
cases  has  produced  beneficial  results ; but  that  the  land  tax  alone  can- 
not be  relied  on  under  all  conditions  to  yield  sufficient  revenue,  and 
that  in  times  of  depression  is  likely  to  give  rise  to  serious  problems. 1 

The  special  taxation  of  the  future  increment  of  land  values  has 
been  applied  in  Germany  and  Great  Britain ; and  in  theory  such  a tax 
appears  to  merit  serious  consideration.  The  actual  results  thus  far, 
however,  have  not  yielded  any  large  additional  revenue.  The  problem 
of  administration  is  not  easy ; and  there  are  difficult  problems  in  differ- 
entiating between  unearned  increment  and  that  due  to  improvements 
and  management. 2 

Single  tax  theory  seems  to  assume  a uniform  method  for  the  tax- 
ation of  land  values.  But  recent  discussions  of  taxation  have  indi- 
cated the  need  for  varying  the  rule  of  uniformity  even  in  the  taxation 
of  land.  The  taxation  of  forest  and  mineral  lands  appears  to  call  for 
special  treatment,  in  the  interest  of  conservation  of  natural  resources.3 
The  different  bases  actually  used  in  the  assessment  of  urban  and  rural 
lands  suggests  the  inquiry  whether  some  difference  may  be  justified,  as 
has  been  provided  by  law  in  Minnesota. 

Local  variations  in  local  taxes  also  seem  to  be  advisable  to  some 
extent;  and  some  home  rule  or  local  option  in  taxation  may  properly 
be  authorized.  But  it  is  doubtful  if  this  can  be  definitely  adjusted  in 
a constitutional  provision  to  meet  the  needs  of  varying  times  and  con- 
ditions. The  present  provisions  of  the  Illinois  constitution  preventing 
the  General  Assembly  from  imposing  local  taxes  and  requiring  local 
taxes  to  be  imposed  by  local  authorities  may  well  be  continued. 

A committee  of  the  National  Tax  Association  appointed  to  prepare 
a plan  for  a model  system  of  state  taxation  presented  a report  at  the 
Chicago  conference  in  1919  approving  the  following  fundamental  prin- 
ciples, which  it  finds  in  a general  way  at  the  basis  of  American  tax 
laws,  though  at  times  applied  by  faulty  methods : 

“1.  That  every  person  of  taxable  ability  should  pay  some  sort  of 
a direct  personal  tax  to  the  government  from  which  he  receives  the 
personal  benefits  that  government  confers”. 

1 Haig,  R.  M.  The  Exemption  of  Improvements  from  Taxation  in  Canada  and 

the  United  States. 

3 For  recent  discussions  of  the  single  tax  and  land  value  taxation,  See : Yetta 
Scheftel:  The  Taxation  of  Land  Value  (1916),  and  Arthur  N.  Young:  The  Single 
Tax  Movement  in  the  United  States  (1916). 

3 L.  E.  Young:  Mine  Taxation  in  the  United  States  (University  of  Illinois 
Studies  in  the  Social  Sciences). 


265 


“2.  That  tangible  property,  by  whomsoever  owned,  should  be 
taxed  by  the  jurisdiction  in  which  it  is  located,  because  it  there  re- 
ceives protection,  and 

“3.  That  business  carried  on  for  profit  in  any  locality  should  bt 
taxed  for  the  benefit  it  receives.” 


Conclusions.  The  general  conclusion  which  may  be  drawn 
from  this  analysis  of  taxation  methods  in  Illinois  and  elsewhere  is- 
that  taxation  is  not  a simple  problem  which  can  be  settled  by  a single 
phrase — either  of  uniformity  or  single  tax ; but  that  under  modem 
social  conditions  it  is  a highly  complex  affair,  which  requires  con- 
tinuous study  and  frequent  modifications,  to  meet  changing  conditions 
and  the  needs  of  the  government.  To  attempt  to  establish  any  one 
system  of  taxation  in  the  state  constitution  seems  clearly  to  be  unwise 
and  constitutional  provisions  should  leave  the  largest  possible  discre- 
tion to  the  law  making  authorities. 

In  chapter  IV  of  this  pamphlet  (pp.  232-235)  has  been  set  forth 
the  inequalities  and  injustices  of  the  present  tax  system  in  Illinois,, 
which  seem  to  be  inevitable  under  the  requirement  for  a uniform', 
general  property  tax ; and  the  serious  difficulties  which  have  arisen*, 
under  the  detailed  provisions  of  the  present  Illinois  constitution  re- 
lating to  taxation. 

As  shown  in  chapter  V (pp.  243-244),  there  has  been  a marked 
tendency  in  recent  years  toward  relaxing  the  restrictions  on  the  power 
of  the  legislature  over  taxation;  and  most  state  constitutions  now 
contain  much  more  liberal  provisions  on  this  subject  than  that  of 
Illinois. 

The  Supreme  Court  of  the  United  States  has  distinctly  recognized 
that  a single  uniform  system  of  taxing  all  kinds  of  property  will  prove 
unjust  and  unequal.  As  stated  by  Justice  Lamar,  in  the  case  of  the 
Pacific  Express  Company  v.  Seibert : 

“This  court  has  repeatedly  laid  down  the  doctrine  that  diversity 
of  taxation,  both  with  respect  to  the  amount  imposed  and  the  various 
species  of  property  selected  either  for  bearing  its  burdens  or  being: 
exempt  from  them,  is  not  inconsistent  with  a perfect  uniformity  and 
equality  of  taxation  in  the  proper  sense  of  these  terms;  and  that  a 
system  which  imposes  the  same  tax  upon  every  species  of  property,, 
irrespective  of  its  nature  or  condition  or  class,  will  be  destructive  of 
the  principle  of  uniformity  and  equality  in  taxation,  and  of  a just 
adaptation  of  property  to  its  burdens.”4 

In  the  case  of  Home  Insurance  Co.  v.  New  York,  Justice  Field 

said : 

“The  [fourteenth]  amendment  does  not  prevent  the  classification 
of  property  for  taxation — subjecting  one  kind  of  property  to  one  rate 
of  taxation,  and  another  kind  of  property  to  a different  rate — dis- 


4 142  U.  S.  339,  351  (1891). 


266 


tinguishing  between  franchises,  licenses,  and  privileges,  and  visible 
and  tangible  property,  and  between  real  and  personal  property”.5  * 

Justice  Bradley,  in  the  case  of  Bell’s  Gap  R.  Co.  v.  Pennsylvania, 
stated : 

“It  [a  State]  may,  if  it  chooses,  exempt  certain  classes  of  property 
from  any  taxation  at  all,  such  as  churches,  libraries  and  the  property 
of  charitable  institutions.  It  may  impose  different  specific  taxes  upon 
different  trades  and  professions,  and  may  vary  the  rates  of  excise 
upon  various  products ; it  may  tax  real  estate  and  personal  property 
in  a different  manner ; it  may  tax  visible  property  only,  and  may  not 
tax  securities  for  payment  of  money,  it  may  allow  deductions  for  in- 
debtedness or  not  allow  them  . . . the  14th  amendment  was 

not  intended  to  compel  the  state  to  adopt  an  iron  rule  of  taxation. 
If  that  were  its  proper  construction  ...  it  would  render  nuga- 
tory those  discriminations  which  the  best  interests  of  society  require.”6 

Some  constitutional  limitations  on  the  general  assembly  seem 
however  to  be  desirable.  Care  should  be  taken  to  prevent  the  grant 
of  contractual  rights  by  exemptions,  by  the  surrender  or  suspension  of 
taxation,  or  by  any  special  form  of  taxation.  It  should  also  be  pro- 
vided that  taxation  should  be  imposed  by  general  law,  uniform  upon 
persons  and  property  of  the  same  class.  Suggested  constitutional  pro- 
visions based  on  these  views  and  similar  to  those  recently  adopted  in 
such  states  as  Minnesota  and  Kentucky,  have  been  formulated  in  a 
pamphlet  issued  by  the  Civic  Federation  of  Chicago,  as  follows : 

1.  The  right  of  taxation  shall  never  be  surrendered,  suspended 
nor  contracted  away. 

2.  The  general  assembly  shall  provide  for  the  taxation  of  persons 
and  values  by  general  law,  so  that  each  tax  levied  shall  be  uniform 
upon  persons  and  values  of  the  same  class. 

3.  Exemption,  if  any,  shall  be  by  general  law  and  shall  not  be 
contractual,  but  may  be  revoked  by  the  general  assembly  at  any  time.7 

If,  however,  such  provisions  are  considered  inadequate  and  the 
constitutional  convention  wishes  to  make  more  definite  provisions,  a 
tentative  draft,  including  some  of  the  existing  provisions  in  the  con- 
stitution of  Illinois,  may  be  submitted  for  consideration  as  follows : 


Suggested  Constitutional  Provisions:  1.  Taxes  shall  be 

levied  and  collected  under  general  laws  and  for  public  pur- 
poses only;  and  shall  be  uniform  upon  all  persons  and  prop- 
erty of  the  same  class  within  the  jurisdiction  of  the  body  imposing  the 
same.8  Taxes  may  also  be  levied  on  incomes,  privileges  and  occupa- 
itons ; and  such  taxes  may  be  graduated  and  progressive,  and  reason- 
able exemptions  may  be  provided. 


5 134  U.  S.  594,  606  (1889). 

0 134  U.  S.  232,  237  (1889). 

7 Study  No.  2,  Taxation  and  Public  Finance,  p.  34. 

8 The  question  should  be  considered  whether  this  phrase  meets  the  difficulties 
noted  on  page  241  under  the  present  requirement  for  complete  uniformity  within 
each  jurisdiction  imposing  me  tax. 


267 


2.  The  power  of  taxation  shall  never  be  surrendered,  suspended 
or  contracted  away ; and  exemptions,  if  any,  shall  be  by  general  law 
and  shall  be  revocable  by  the  general  assembly  at  any  time. 

3 The  general  assembly  shall  not  impose  taxes  upon  municipal 
corporations,  or  the  inhabitants  or  property  thereof  for  corporate 
purposes ; but  all  municipal  corporations  shall  be  required  to  levy  taxes 
for  the  payment  of  debts  contracted  under  authority  of  law,  and  shall 
be  vested  with  authority,  to  levy  and  collect  taxes  for,  local  purposes — 
within  limits  to  be  prescribed  by  law. 

4.  Municipal  corporations  shall  be  vested  with  power  to  make 
local  improvements  and  to  maintain  local  services  by  special  assess- 
ment, by  special  taxation  of  contiguous  property,  or  otherwise,  as 
may  be  provided  by  law. 

In  states-  with  provisions  for  the  initiative  and  referendum,  tax 
laws  are  subject  to  these  methods  of  popular  control.  But  the  refer- 
endum may  be  made  inapplicable  if  a law  is  declared  an  emergency 
measure  by  a special  vote  of  the  legislature ; and  in  Ohio  tax  laws 
are  expressly  exempted  from  the  referendum.  On  the  other  hand,  in 
Oregon,  it  is  provided  that  tax  laws,  shall  not  be  declared  emergency 
measures ; and  the  Kentucky  taxation  amendment  of  1915  expressly 
provides  for  a referendum  on  certain  tax  laws.  It  may  be  observed 
that  in  case  of  a new  tax  law,  there  is  more  than  the  usual  probability 
that  those  opposed  to  the  new  taxes  will  endeavor  to  file  a referendum 
petition  for  the  purpose  of  delaying  the  new  taxes,  even  if  there  is 
little  likelihood  of  defeating  the  law  by  the  referendum  vote.  If  a 
referendum  is  authorized  for  tax  laws,  it  will  be  important  to  provide 
for  an  early  vote ; or  the  referendum  may  be  authorized  as  a method 
of  repealing  the  law,  without  preventing  its  going  into  effect  in  the 
meantime. 


268 


VIII.  APPROPRIATION  AND  BUDGET  METHODS 


A budget  properly  consists  of  a financial  plan,  involving  an  esti- 
mate of  expenditures  for  a given  financial  period  and  also  an  estimate 
of  revenues  from  which  such  expenditures  are  to  be  met.  Generally 
the  estimate  of  expenditures  receives  the  greater  degree  of  considera- 
tion in  this  country.  This  is  partly  due  to  the  fact  that  ordinarily 
revenues  come  into  the  treasury  as  a result  of  the  operation  of  per- 
manent laws,  and  do  not  have  to  be  considered  as  a whole  at  certain 
regular  periods,  whereas  the  more  common  plan  in  this  country  as 
well  as  in  others  is  that  there  shall  be  a limited  appropriation  period, 
and  that  within  such  limited  period  a new  set  of  appropriations  shall 
be  made  for  the  conduct  of  governmental  affairs  during  the  succeed- 
ing period. 


The  Budget  Situation  in  Illinois.  The  Governor  is  the  center 
of  the  budgetary  organization  of  the  state  of  Illinois  in  that  he  has 
certain  definite  functions  with  respect  both  to  the  preparation  of  ap- 
propriation estimates  and  to  the  final  approval  of  such  estimates  after 
they  have  been  adopted  by  the  general  assembly.  Also  to  some 
extent  he  controls  the  revenue  machinery  and  the  exependitures  of 
the  state  after  appropriations  have  been  made. 

By  Article  V,  Section  7 of  the  constitution  it  is  made  the  duty  of 
the  governor,  at  the  commencement  of  each  regular  session  of  the 
general  assembly  to  “present  estimates  of  the  amount  of  money  re- 
quired to  be  raised  by  taxation  for  all  purposes.”  This  duty  imposed 
upon  the  governor  has  only  recently  come  to  be  exercised  in  any  effec- 
tive manner.  Legislation  of  1913  imposed  upon  the  Legislative  Refer- 
ence Bureau  the  duty  of  collecting  estimates  from  the  various  state 
offices,  and  of  submitting  such  estimates  to  the  general  assembly. 
Under  this  legislation  the  governor  in  fact  had  little  share  in  the  prepa- 
ration of  estimates,  although  he  was  chairman  of  the  board  which 
controlled  the  Legislative  Reference  Bureau.  In  1917,  however,  the 
civil  administrative  code  organized  the  Department  of  Finance,  im- 
posed upon  this  department  the  duty  of  preparing  estimates,  and  re- 
quires the  governor  to  submit  to  the  general  assembly  a budget  “em- 
bracing therein  the  amounts  recommended  by  him  to  be  appropriated 
to  the  respective  departments,  offices  and  institutions,  and  for  all  other 
public  purposes,  the  estimated  revenues  from  taxation,  the  estimated 
revenues  from  sources  other  than  taxation,  and  an  estimate  of  the 
amount  required  to  be  raised  by  taxation.”  The  governor  is  required 


269 


to  transmit  with  the  budget  the  estimates  of  receipts  and  expenditures 
of  the  elective  officers  in  the  executive  and  judicial  departments  and 
of  the  University  of  Illinois.  That  is,  for  these  officers  and  for  the 
University  of  Illinois  the  governor  not  only  submits  his  estimates  of 
needed  appropriations  but  also  in  addition  the  estimates  prepared  by 
these  officers  themselves. 

Under  the  legislation  of  1917,  a budget  was  prepared  in  1919  and 
the  governor  exercised  an  effective  control  over  the  appropriations 
made  to  the  officers  directly  under  his  supervision,  although  not  such 
a control  over  the  appropriations  for  other  elective  state  officers.  The 
Governor  appeared  in  person  at  a joint  session  of  the  general  assembly, 
and  for  the  session  of  1919  it  may  be  said  that  there  was  a definite 
budget  system  for  the  state,  although  this  system  applied  most  effec- 
tively to  the  officers  directly  responsible  to  the  governor. 

The  governor  has  had  a large  negative  share  in  the 
making  of  appropriations  since  the  adoption  of  a constitutional  amend- 
ment in  1884  conferring  upon  him  the  power  to  veto  items  of  ap- 
propriations. Before  1884  the  governor  found  it  necessary  to  disap- 
prove an  appropriation  bill  in  whole  or  to  approve  it  as  a whole.  By 
a constitutional  amendment  in  1884  bills  making  appropriations  were 
required  to  “specify  the  objects  and  purposes  for  which  the  same  are 
made  and  appropriate  to  them  respectively  their  several  amounts  in 
distinct  items  and  sections,”  and  an  authority  was  vested  in  the  gover- 
nor to  veto  any  item  in  such  a bill. 

The  governor’s  exercise  of  the  veto  power  both  over  appropria- 
tion bills  as  a whole  and  over  items  in  appropriation  bills  has  primarily 
been  exercised  since  1900.1  Governor  Deneen  in  1905  vetoed  items  to 
the  extent  of  $845,000  and  in  1907  to  the  amount  of  $632,500.  Gover- 
nor Dunne  in  1913  vetoed  items  amounting  to  $1,040,000,  and  in  1915 
items  amounting  to  $1,925,000. 

Governor  Deneen  in  1907  2 disapproved  a part  of  an  item,  and 
Governor  Dunne  in  1913  and  1915  also  disapproved  parts  of  items. 
The  constitution  authorized  the  governor  to  veto  “distinct  items”, 
and  the  supreme  court  in  the  case  of  Fergus  v.  Russel3  took  the  view 
almost  necessarily  that  this  did  not  permit  a veto  of  parts  of  items, 
and  that  where  an  appropriation  was  made  as  so'  much  per  annum, 
such  an  appropriation  amounted  to  but  one  item,  although  it  approp- 
riated the  same  amount  for  each  of  two  years. 

Although  the  governor’s  veto  power  clearly  does  not  extend  to 
parts  of  items  in  an  appropriation  bill,  the  question  still  presents  itself 
as  to  what  is  an  item  of  such  a bill.  As  to  this,  Article  V,  Section 
16  of  the  constitution  provides  that  appropriation  bills  shall  “specify 
the  objects  and  purposes  for  which  the  same  are  made,  arid  appropriate 
to  them  respectively  their  several  amounts  in  distinct  items  and  sec- 

1 See  Debel,  N.  H.,  The  Governor’s  Veto  in  Illinois,  pp.  118-125. 

2 Senate  Journal,  1754. 

8 270  111.  304  (1915)  pp.  348-352;  As  to  veto  of  parts  of  items  in  other  states 
see:  Commonwealth  v.  Barnett,  199  Pa.  State,  161,  (1901)  ; Regents  of  the  Uni- 
versity v.  Trapp,  28  Okla.,  23  (1911)  ; Fulmore  v.  Lane,  104  Tex.  499,  (1911)  ; 
State  v.  Holder,  76  Miss.  158,  (1898);  State  ex  rel.  Jamison  v.  Forsythe,  21  Wyo. 
-359,  (1913)  ; Nowell  v.  Harrington,  122  Md.  487  (1914). 


2?0 


dons.”  It  will  be  noted  that  this  not  only  requires  the  appropriations 
to  be  made  in  distinct  items,  but  also  that  the  objects  and  purposes 
shall  be  specified.  This  constitutional  provision  not  only  requires  an 
itemized,  appropriation  but  also  an  appropriation  definite  in  amount, 
and  the  supreme  court  has  said  that  indefinite  appropriations  are  in- 
valid under  Section  16  of  Article  V,  and  also  under  Section  18  of 
Article  IV;  for  Section  18  of  Article  IV  provides  that  the  aggregate 
amount  of  appropriations  shall  not  exceed  the  amount  of  revenue 
authorized;  and  to  appropriate  indefinitely  would  make  it  impossible 
to  know  what  the  total  amount  of  appropriation  is,  which  is  to  be 
limited  by  the  total  amount  of  revenue.4  As  to  the  matter  of  definite- 
ness of  appropriations  a clear  rule  has  been  established  by  the  court 
which  makes  no  trouble. 

As  to  what  constitutes  an  item  and  as  to  what  amount  of  discre- 
tion vests  in  the  general  assembly  in  making  lump  sum  appropriations, 
a good  deal  of  difficulty  still  presents  itself.  In  the  case  of  People 
ex  rel.  State  Board  of  Agriculture  v.  Brady,5  the  court  said  that  “the 
word  item  is  in  common  use  and  well  understood  as  a separate  entry 
in  an  account  or  a schedule,  or  a separate  particular  in  an  enumeration 
of  a total  which  is  separate  and  distinct  from  the  other  particulars 
or  entries.”  The  statement  of  the  court  and  its  decision  in  this 
case  were  clearly  right,  for  here  the  general  assembly  had  itemized 
an  appropriation  to  the  State  Board  of  Agriculture  and  some  of  the 
items  had  been  vetoed  by  the  governor.  The  contention  of  the  Board 
that  the  totals  constituted  the  item  and  that  the  details  were  not  items 
subject  to  the  governor’s  veto  was  clearly  untenable,  although  some 
support  for  this  view  was  found  in  decisions  by  the  supreme  courts  of 
Oklahoma  and  Texas.6  The  State  Board  of  Agriculture  case,  while 
it  defines  the  term  “items”,  defines  it  with  reference  to  a case  in  which 
there  was  no  issue  regarding  the  power  of  the  general  assembly  to 
make  lump  sum  appropriations  or  as  to  the  power  of  the  general  as- 
sembly to  determine  the  size  of  the  items. 

The  case  of  Mitchell  v.  Lowden7  involved  an  issue  regarding 
the  $60,000,000  bond  issue  and  the  provision  that  the  money  derived 
from  this  bond  issue  should  be  spent  upon  a state  system  of  hard 
roads,  the  routes  for  such  system  of  hard  roads  being  outlined  in 
detail.  In  this  case  the  court  said : 

“The  single  purpose  for  which  the  money  appropriated  is  to  be 
used  in  the  construction  of  a system  of  roads.  There  will,  perhaps, 
be  many  contracts  for  the  construction  of  parts  of  the  roads,  but  each 
contract  is  not  an  item  which  can  be  separately  stated  and  for  which 
a definite  amount  can  be  appropriated.  There  will,  perhaps,  be 
many  contracts  for  the  purchase  of  materials  and  tools,  but  each 
contract  of  purchase  is  not  an  item  which  can  be  separately  stated, 
and  for  which  a definite  amount  can  be  appropriated.  Nor  is  the  pur- 
chase of  all  of  one  kind  of  material  such  an  item.  All  are  items  of 

4 Fergus  v.  Russel,  270  111.  304  (1915)  p.  333. 

^ 277  111.  124  (1917). 

6 Regents  of  the  University  v.  Trapp,  28  Okla.  23,  (1911);  Fulmore  v.  Lane, 
104  Tex.  499  (1911). 

7 288  111.  327.  See  also  Martens  v.  Brady  264  111.  178  (1914). 


m 


the  aggregate,  but  the  constitution  does  not  require  an  itemization,  in 
minute  detail,  of  every  expenditure  of  money  in  connection  with  the 
general  purpose  for  which  an  appropriation  is  made.  The  legislature 
could  not  know  at  the  time  of  making  the  appropriation,  even  approxi- 
mately, the  amount  required  for  each  of  the  various  contracts  or 
purchases.  A similar  objection  was  made  to  three  acts  appropriating 
sums  of  money  in  gross  for  building  and  maintaining  state-aid  roads, 
in  Martens  v.  Brady,  264  111.  178,  and  was  held  invalid.  The  original 
section  16  of  Article  V made  no  special  reference  to  appropriations. 
So  much  of  the  section  as  now  refers  to  bills  making  appropriations 
of  money  was  adopted  as  an  amendment  in  1884.  At  the  next  session 
after  the  adoption  of  this  amendment  the  legislature  made  an  appro- 
priation of  $200,000  for  the  purchase  of  a site  and  constructing 
buildings  thereon  for  the  soldiers’  and  sailors’  home  and  for  fitting 
the  same  for  occupancy,  without  separating  the  amount  into  items. 
(Laws  of  1885r  p.  16).  The  same  legislature  made  a similar  appro- 
priation of  $73,000  for  the  construction  and  completion  of  the  main 
building  of  the  Eastern  Illinois  Hospital  for  the  Insane  (Laws  of 
1885,  p.  13),  and  numerous  other  like  appropriations.  It  has  been 
the  customary,  if  not  the  uniform,  method  of  making  appropriations 
for  the  construction  of  buildings  and  other  public  works,  and  the 
Supreme  Court  building  was  constructed  and  the  Centennial  Memorial 
building  is  in  process  of  construction  by  means  of  appropriations  so 
made.  (Laws  of  1895,  p.  76;  Laws  of  1907,  p.  74;  Laws  of  1917,  p. 
66.)  This  legislative  construction,  while  not  obligatory  upon  the 
court,  is  entitled  to  consideration  and  we  regard  it  as  according  with 
the  constitution.” 

The  general  assembly  in  1917  adopted  a policy  of  using  a certain 
standard  terminology  throughout  all  appropriation  bills,  and  in  con- 
nection with  the  adoption  of  this  terminology  it  consolidated  into 
larger  items  a number  of  details  which  had  been  specifically  appro- 
priated for  in  earlier  sessions,  without  uniformity,  throughout  the 
several  bills.  Objection  was  made  to  this  consolidation  of  matters 
previously  appropriated  for  in  separate  items,  on  the  ground  that  this 
did  not  constitute  a sufficient  itemization.  Under  the  present  con- 
stitution this  view  seems  untenable,  and  the  degree  of  detail 
in  the  itemization  of  appropriations  apparently  rests  within  the  dis- 
cretion of  the  general  assembly.  Certainly  the  constitutional  provision 
wras  not  intended  to  prevent  a uniform  classification  of  appropriations 
so  that  a uniform  bookkeeping  system  might  be  devised.  The  uniform 
classification  of  appropriations  adopted  in  1917  has  been  applied  with 
some  modification  to  the  appropriations  made  in  1919. 

In  both  1917  and  1919  detailed  itemization  has  remained  for 
employes  (aside  from  the  charitable  institutions  in  1917  and  the  chari- 
table and  penal  institutions  in  1919).  The  practice  of  appropriating  in 
lump  sum  for  the  salaries  of  employes  of  charitable  institutions  has 
been  in  existence  since  1909,  although  this  plan  was  adopted  for  penal 
institutions  only  in  1919.  There  seems  no  constitutional  objection  to 
the  appropriation  in  lump  sum  of  salaries  for  these  institutions,  and 
to  the  application  of  the  same  plan  to  the  other  departments  and  offices 


2 72 


of  the  state  government,  if  this  should  be  desired  in  the  future.  Under 
a plan  of  this  sort  the  items  of  appropriation  for  salaries  become  dis- 
tinctly large  ones.  To  this  extent  the  governor’s  power  of  detailed 
veto  is  diminished.  However,  there  is  no  constitutional  guaranty  as 
to  the  detail  in  which  the  governor’s  veto  power  over  items  may  be 
exercised. 

The  plan  of  appropriating  generally  for  a certain  purpose,  and 
then  apportioning  by  the  same  act  the  funds  so  appropriated  to  that 
purpose,  is  one  which  may  fall  within  the  constitutional  prohibition. 
The  charities  appropriation  act  of  1917  and  the  charitable  and  penal 
appropriation  act  of  1919  made  appropriations  generally  for  all  of  the 
institutions  as  a unit,  and  then  apportioned  these  appropriations  specifi- 
cally among  the  various  institutions,  with  a provision  that  the  appor- 
tionment should  be  followed  as  nearly  as  possible  but  that  the  “Depart- 
ment of  Public  Welfare  with  the  consent  in  writing  of  the  Department 
of  Finance  may  apportion  the  amount  stated  in  the  several  items  (ex- 
cept in  the  item  of  permanent  improvements)  among  the  several  state 
charitable,  penal  and  reformatory  institutions  according  to  the  varying 
needs  of  such  institutions,  not  changing  however  the  objects  and  pur- 
poses for  which  such  appropriations  are  made.8  The  apportionment 
here  made  by  the  statute  is  purely  tentative  and  merely  supplements  a 
general  appropriation  of  specific  amounts,  but  it  is  possible  that  this 
might  be  held  to  violate  the  constitutional  requirement  that  appropria- 
tion bills  shall  “specify  the  objects  and  purposes  for  which  they  are 
made and  possibly  also  the  constitutional  provision  that  “no  money 
shall  be  diverted  from  an  appropriation  made  for  any  purpose,  or 
taken  from  any  fund  whatever  either  by  joint  or  separate  resolution” 
(Article  IV,  Section  17),  although  this  provision  seems  to  relate  only 
to  the  diversion  of  money  from  an  appropriation  by  joint  or  separate 
resolution  of  the  general  assembly.  The  plan  of  the  acts  just  referred 
to  is  of  course  a plan  adopted  by  law  and  not  by  joint  or  separate 
resolution. 

The  case  of  Fergus  v.  Russel9  says  that  “to  make  a valid  approp- 
riation a definite  sum  of  money  must  be  appropriated  for  the  purpose 
specified”.  If  an  appropriation  act  merely  said  that  an  appropriation 
sufficient  to  meet  the  expenses  of  an  institution  or  a group  of  institu- 
tions is  being  made  this  would  clearly  be  improper.  Technically,  under 
the  view  taken  by  the  court,  the  appropriations  above  referred  to  are 
definite  as  general  appropriations  for  the  conduct  of  all  institutions 
as  a group,  although  if  the  apportionment  to  specific  institutions  be 
regarded  as  an  appropriation  it  is  indefinite,  in  as  much  as  the  final 
amount  to  go  to  each  institution  rests  in  the  discretion  of  the  director 
of  public  welfare  subject  to  the  approval  of  the  director  of  finance. 
The  purpose  accomplished  by  the  appropriation  acts  here  under  dis- 
cussion could  perhaps  be  constitutionally  accomplished  by  omitting 
the  detailed  apportionment  to  specific  institutions,  although  this  would 
diminish  the  control  of  the  general  assembly  without  increasing  in 
any  way  the  power  of  the  governor. 


8 Laws  1917  page  72;  1919  page  145. 

» 270  Til.  page  333. 


273 


The  question  here  under  discussion  is  important  in  view  of  the 
fact  that  the  governor  actually  vetoed  certain  items  of  the  apportion- 
ment to  charitable  institutions  in  1917.  If  such  an  apportionment  is  to 
be  regarded  as  made  up  of  items  subject  to  the  governor’s  veto,  the 
apportionment  is  probably  invalid  as  an  itemization,  because  of  in- 
definiteness, and  the  constitution  should  make  sure  that  the  plan  now 
employed  may  be  continued  without  constitutional  doubt,  if  there  is 
such  at  present. 

With  respect  to  the  governor’s  veto  power  over  appropriations,  it 
should  be  said  that  here  as  with  respect  to  the  governor’s  veto  power 
generally,  the  power  is  now  substantially  absolute.  All  of  the  larger 
appropriation  acts  are  passed  by  the  general  assembly  just  prior  to 
the  taking  of  the  final  recess,  and  ordinarily  a quorum  of  the  two 
houses  does  not  assemble  after  that  recess  to  hear  the  governor’s  veto 
messages.  The  veto  under  these  conditions  is  absolute  because  there 
is  no  possibility  of  its  being  overcome  in  the  two  houses.  For  this 
reason  the  governor’s  control  over  appropriations  after  they  have 
been  passed  by  the  general  assembly  is  a negative  one.  A satisfactory 
result  with  respect  to  appropriations  can  not  be  accomplished  as  be- 
tween the  governor  and  the  general  assembly  by  a purely  negative  re- 
lation. 

With  respect  to  officers  under  the  governor’s  control  a much  more 
satisfactory  relationship  in  the  determination  of  appropriation  policy 
has  been  worked  out  through  the  civil  administrative  code,  enacted  in 
1917.  For  appropriations  to  officers  not  directly  under  the  control  of 
the  governor,  the  governor  under  the  civil  administrative  code  makes 
recommendations,  but  these  recommendations  can  not  be  final  and  the 
governor  must  transmit  with  his  recommendations  the  original  esti- 
mates of  the  other  elective  state  officers.  As  a matter  of  fact  the  ex- 
perience of  1919  indicates  that  the  governor  can  not  exercise  an  ef- 
fective control  over  the  estimates  and  appropriations  of  state  officers 
who  are  by  popular  election  upon  much  the  same  political  basis  as  the 
governor  himself. 

Under  the  constitution,  the  governor  has  certain  other  functions 
with  respect  to  budget  matters.  By  virtue  of  Article  V,  Section  20,  a 
semi-annual  report  is  to  be  made  to  the  governor  by  the  officers  of  the 
executive  department  and  of  the  public  institutions  of  the  state  of  all 
moneys  received  or  disbursed  by  them  severally  from  all  sources ; and 
by  Article  V,  Section  21,  the  governor  may  require  information  in 
writing  under  oath  from  the  officers  of  the  executive  department  and  all 
officers  and  managers  of  state  institutions  upon  any  subject  relating  to 
the  condition,  management  and  expenses  of  their  respective  offices. 
These  sections  measure  the  extent  of  the  governor’s  power  over  elec- 
tive state  officers,  and  under  the  authority  of  these  sections  the  gover- 
nor now  requires  a quarterly  financial  statement  from  each  elective 
state  officer  of  the  executive  department. 

With  respect  to  the  state  officers  directly  under  his  supervision, 
appropriation  acts  for  a number  of  years  provided  that  bills  should 
be  approved  by  the  governor  before  payment.  The  office  of  institu- 
tional auditor  was  established  in  the  governor’s  office  for  the  purpose 


274 


of  exercising  this  control  vested  in  the  governor  over  expenditures. 
The  civil  administrative  code  enacted  in  1917  extended  this  authority, 
vesting  the  control  over  the  approval  of  bills  in  the  department  of 
finance,  and  authorizing  that  department  to  require  uniform  financial 
reports  from  the  various  officers  and  institutions  under  the  control 
of  the  governor.  So  far  as  the  officers  immediately  under  the  gover- 
nor are  concerned,  a fairly  systematic  and  satisfactory  system  of  finan- 
cial reports  has  been  worked  out,  although  this  has  not  yet  been  ac- 
complished for  the  elective  state  officers. 

In  connection  with  this  discussion,  it  should  of  course  be  borne 
in  mind  that  the  approval  of  bills  by  the  department  of  finance  is  a 
preliminary  approval,  and  that  under  the  constitution  express  pro- 
vision is  made  that  “no  money  shall  be  drawn  from  the  treasury  ex- 
cept in  pursuance  of  an  appropriation  made  by  law  and  on  the  pre- 
sentation of  a warrant  issued  by  the  auditor  thereon.”  By  the  con- 
stitution the  auditor  is  the  final  authority  to  determine  whether  bills 
shall  or  shall  not  be  paid,  and  all  preliminary  approvals  required  by 
statute  of  the  department  of  finance  or  the  governor  or  the  civil  service 
commission  are  useless  unless  the  auditor  decides  that  a warrant 
should  be  issued.10 

Under  the  terms  of  the  constitution  special  safeguards  are  pro- 
vided as  to  contracts  with  respect  to  fuel,  stationery,  printing  paper, 
and  with  respect  to  printing  ordered  by  the  general  assembly.11  In 
the  case  of  these  contracts  the  general  assembly  is  required  to  fix  a 
maximum  price,  the  contracts  are  expressly  required  to  be  let  to  the 
lowest  responsible  bidder,  and  all  such  contracts  are  made  subject  to 
the  approval  of  the  governor.  With  respect  to  the  officers  and  in- 
stitutions directly  under  the  supervision  of  the  governor,  a control 
over  purchases  and  contracts,  other  than  those  just  mentioned,  has 
been  established  through  the  civil  administrative  code,  and  this  super- 
vision is  exercised,  with  respect  to  the  details  of  purchasing,  by  the 
director  of  public  works  and  buildings,  and  with  respect  to  the  general 
methods  of  purchasing,  by  the  director  of  the  department  of  finance. 
That  is,  with  respect  to  officers  and  institutions  directly  under  the 
control  of  the  governor,  the  supervision  over  contracts  and  purchases 
is  exercised  by  officers  appointed  by  the  governor  and  directly  respon- 
sible to  him.  For  the  functions  under  the  elective  state  officers,  how- 
ever, the  governor’s  control  does  not  exist,  except  so  far  as  such 
control  is  actually  exercised  under  the  terms  of  Article  IV,  Section  25 
of  the  constitution. 

A proper  budget  procedure  involves  a close  correlation  of  revenues 
and  expenditures.  In  the  discussion  here  of  the  governor’s  functions 
with  respect  to  budget  matters,  reference  should  be  made  to  the  fact 
that  the  state  tax  rate  is,  under  authority  of  statute,  fixed  by  the  gover- 
nor, auditor  and  treasurer. 

The  review  just  given  of  the  governor’s  relationship  to  appro- 
priations and  expenditures  indicates  that  under  the  existing  constitu- 
tion a large  amount  of  authority  vests  in  the  governor,  or  can  by 


10  Article  TV,  Section  17. 
u Article  IV,  Section  25. 


275 


statute  be  conferred  upon  him,  with  respect  both  to  the  preparation 
pf  estimates  of  appropriations  and  with  respect  to  the  expenditures 
of  money.  The  civil  administrative  code  has  given  to  the  governor  thj 
bulk  of  power  which  may  be  conferred  upon  him,  and  this  power  was 
exercised  in  connection  with  the  appropriations  made  for  the  biennium 
1919-1921. 


Relation  of  Appropriations  to  Revenue.  State  revenues  are 
derived  from  sources  provided  by  permanent  tax  laws,  and  such  laws 
do  not  require  revision  at  the  time  the  biennial  appropriations  are 
made.  The  revenue  side  of  the  budget  therefore  receives  and  is  likely 
to  receive  less  attention  than  the  appropriation  side.  The  constitution 
provides  that  the  appropriations  for  the  fiscal  period  shall  not  exceed 
the  amount  of  revenue  authorized  by  law  to  be  raised  in  such  time. 
An  effort  was  made  in  the  case  of  Fergus  v.  Brady12  to  have  the  court 
say  that  the  amount  of  appropriations  should  depend  upon  the  amount 
of  revenue  to  be  raised  by  the  state  tax  rate,  in  view  of  the  fact  that 
it  is  possible  to  estimate  with  some  degree  of  closeness  the  amount 
likely  to  be  produced  by  the  state  tax  rate.  It  was  urged  that  this 
view  should  be  taken  because  of  the  importance  of  estimating  in  ad- 
vance the  amounts  likely  to  be  derived  from  all  sources  of  revenue, 
and  that  if  the  standard  of  total  appropriations  were  rendered  too 
indefinite,  the  limitation  of  appropriations  to  the  amount  of  revenue 
authorized  to  be  raised  during  the  same  time  became  substantially 
ineffective. 

The  supreme  court  declined  to  take  such  a view,  but  said : “Sec- 
tion 18  prohibits  appropriations  in  excess  of  the  revenue  authorized 
by  law  to  be  raised  in  the  period  for  which  appropriations  are  made, 
but  necessarily  revenue,  whether  derived  from  one  source  or  another 
in  the  future,  must  always  be  estimated  and  never  can  be  a fixed  and 
certain  sum.  Circumstances  may  occur  that  will  cause  the  reasonable 
expectations  of  the  general  assembly  as  to  the  amount  of  revenue  to 
miscarry  or  not  to  be  fulfilled,  so  that  there  may  be  a temporary  defi- 
ciency. To  meet  that  condition  which  may  arise  from  failure  in  mak- 
ing collections  of  taxes,  or  result  from  decreased  revenue  from  other 
sources,  the  section  provides  that  in  case  of  failure  of  revenue  the 
general  assembly  may  contract  debts,  never  to  exceed  $250,000.  This 
debt  is  only  to  be  created  by  borrowing  money — not  by  incurring  debts 
or  making  contracts,  since  the  section  requires  that  the  moneys  thus 
borrowed  shall  be  applied  to  the  purpose  for  which  they  were  obtained 
or  to  pay  the  debt  thus  created,  and  to  no  other  purpose.  No  other 
debt  can  be  contracted,  except  for  the  purpose  of  repelling  invasion, 
suppressing  insurrection  or  defending  the  state  in  war  except  upon 
a vote  of  the  people  in  a general  election.” 

Under  the  practice  as  it  exists  in  this  state  there  is  no  equivalence 
between  the  appropriation  period  and  the  revenue  period.  The  general 
assembly  at  its  regular  session  makes  appropriations  for  the  next 


u 277  111.  272  (1917),  p.  278. 


biennial  period,  and  at  the  same  time  authorizes  a state  tax  rate  re- 
garded as  sufficient  to  meet  such  expenses,  when  other  sources  of  reve- 
nue have  also  been  taken  into  consideration.  The  tax  levy  act,  al- 
though in  theory  applying  to  the  same  period  as  do  the  appropriations 
made  at  the  same  time,  does  not  actually  so  apply.  The  appropriations 
made  by  the  general  assembly  in  1919  are  for  the  period  beginning 
July  1,  1919  and  ending  September  30,  1921,  although  the  appropria- 
tions are  primarily  made  to  end  July  1,  1921.  For  the  purposes  of  this 
discussion  we  may  assume  that  the  appropriations  cover  a .two-year 
period  from  July  1,  1919.  The  tax  levy  authorized  at  the  same  time 
provides  for  the  fixing  of  the  tax  rate  in  December  1919,  and  De- 
cember 1920,  the  tax  money  on  the  basis  of  the  levy  of  1919  not  coming 
into  the  treasury  until  April,  1920,  substantially  nine  months  after  the 
appropriations  become  available.  The  payments  from  the  state 
treasury  upon  appropriations  effective  July  1,  1919  to  April,  1920, 
must,  therefore,  be  made  from  funds  derived  from  a tax  levy  author- 
ized by  the  general  assembly  of  1917,  the  general  assembly  of  1917 
having  provided  for  a tax  levy  upon  a different  and  smaller  set  of  ap- 
propriations. That  is,  instead  of  the  appropriation  and  the  tax  levy 
coinciding  in  the  period  covered,  the  appropriation  period  is  under 
present  law  substantially  always  at  least  nine  months  ahead  of  the 
period  for  which  taxes  are  levied  to  meet  such  appropriations. 

Payments  from  the  state  treasury  on  the  basis  of  appropriations 
are  made  from  any  money  available  in  the  state  treasury,  and  if  pay- 
ments were  to  be  made  only  from  the  tax  levy  authorized  by  the  ses- 
sion making  the  appropriations,  none  of  the  regular  appropriations  for 
the  period  1919-1921  could  actually  be  paid  before  April,  1920.  It 
is  out  of  the  question  to  do  this  or  to  avoid  the  payment  of  appropria- 
tions from  other  funds  than  the  tax  levy  authorized  to  meet  such  ap- 
propriations. The  state  treasury  has  never  regarded  itself  as  having 
a deficit  merely  because  the  tax  levy  for  a particular  year  did  not  meet 
the  appropriations  for  that  year,  but  the  revenues  coming  into  the  state 
treasury  either  from  the  general  tax  levy  or  from  other  sources  have 
always  been  regarded  as  available  for  payment  of  any  obligation  exist- 
ing at  that  time  against  the  state.  No  record  is  kept  now  by  annual 
periods  or  by  the  biennial  appropriation  period  of  the  moneys  at- 
tributed to  each  year  which  are  derived  from  all  sources  of  revenue. 
In  view  of  this  fact  it  is  impossible  to  obtain  a statement  of  equivalence 
between  the  annual  expenditures  and  the  annual  income  of  the  state, 
or  between  the  expenditures  and  the  income  of  the  state  for  the  ap- 
propriation period.  Under  these  conditions  it  would  be  substantially 
impossible  for  a court  to  enforce  in  any  effective  way  a provision  that 
the  appropriations  for  the  specific  period  shall  not  exceed  the  amount 
of  money  authorized  by  law  to  be  raised  within  the  same  time.  The 
constitution  lays  down  the  rule  that  the  state  shall,  with  certain  noted 
exceptions,  live  within  its  income  but  does  not  prescribe  any  means 
of  effectively  enforcing  this  rule. 

Attention  should  be  called  also  to  the  fact  that  the  revenue  to  be 
raised  by  the  state  tax  rates  in  Illinois  is  now  determined  as  a mere 
incident  to  the  appropriations.  The  appropriation  acts  are  passed,  and 


a tax  levy  act  is  then  passed  for  the  raising  of  a lump  sum  regarded 
as  sufficient  (with  other  sources  of  revenue)  to  raise  the  amount  ap- 
propriated. The  fixing  of  the  tax  rate  by  the  governor,  auditor  and 
treasurer  is  then  theoretically  a mere  clerical  task,  though  these  offi- 
cers exercise  an  actual  discretion,  and  by  raising  or  lowering  the  state 
tax  rate  actually  bring  about  a rough  correspondence  between  ex- 
penditures and  revenue.13  This  correspondence  is  only  a rough  one 
because  of  the  lack  of  equivalence  between  the  revenue  and  appropria- 
tion periods ; and  the  power  to  fix  the  tax  rate  has  at  times  been  employed 
for  political  considerations  rather  than  for  the  purpose  of  balancing 
revenues  and  expenditures.  At  several  times  in  recent  years  the 
state  treasury  has  been  practically  empty,  although  large  expenditures 
had  to  be  incurred  on  the  basis  of  appropriations  already  made,  and 
the  bills  of  the  state  have  had  to  remain  unpaid  until  further  revenues 
came  into  the  treasury. 

The  constitution  requires  that  “all  taxes  levied  for  state  purposes 
shall  be  paid  into  the  state  treasury.”14  It  also  requires  by  Article  V, 
Section  23  that  all  fees  payable  by  law  for  any  services  performed  by 
the  elective  executive  officials  shall  be  paid  in  advance  into  the  state 
treasury.  In  Article  IV,  Section  17,  the  constitution  provides  that  no 
money  shall  be  drawn  from  the  state  treasury  except  in  pursuance  of 
an  appropriation  made  by  law.  The  constitutional  provisions  just  re- 
ferred to  seem  to  imply  that  any  money  paid  to  a state  officer  or 
employe,  for  the  performance  of  governmental  functions,  shall  be  re- 
garded as  money  belonging  to  the  state,  and  as  technically  coming  into 
the  state  treasury  when  it  is  paid  to  an  officer  or  employe  of  the  state. 
For  a long  time  fees  of  numerous  offices  were  employed  as  a means  of 
defraying  the  expenses  of  such  offices,  and  were  not  formally  paid  into 
the  treasury  of  the  state.  This  situation  was  changed  almost  com- 
pletely by  an  act  of  1911, 15  although  some  cases  of  the  retention  of 
fees  in  payment  for  services  still  remain  with  respect  to  state  offices. 
It  is  doubtful,  however,  whether  any  such  fees  can  be  constitutionally 
retained. 

With  respect  to  the  matter  of  retaining  funds  derived  from  fees 
or  other  sources,  the  state  charitable  and  penal  institutions  present 
a peculiar  problem.  A number  of  these  institutions  have  industrial 
undertakings  which  should  be  run  as  businesses  upon  an  independent 
basis,  so  that  surpluses  if  any  should  be  turned  into  the  state  treasury, 
but  the  expense  of  running  the  business  be  borne  from  the  receipts 
of  the  business  itself.  Such  an  arrangement  cannot  be  made  directly, 
but  the  situation  seems  to  be  constitutionally  met  by  legislation  of 
1919.  Under  this  legislation  the  proceeds  of  industrial  operations  at 
certain  institutions  are  turned  into  the  state  treasury  and  are  held  as 
a special  fund  to  be  known  as  the  working  fund.  A specific  appropria- 
tion is  then  made  from  the  state  treasury  for  the  operation  of  indus- 
tries, the  payments  from  this  appropriation  to  be  limited  to  the  re- 
ceipts into  the  working  fund  set  up  as  an  independent  fund.  In  this 

13  See  Edwards  v.  People,  88  111.  340  (1878). 

14  Article  IX,  Section  7. 

15  Hurd’s  Revised  Statutes,  Ch.  102,  Secs.  11-15.  See  Board  of  Trade  v.  Cowen, 

252  111.  554  (1911). 


278 


manner,  if  a satisfactory  estimate  can  be  made  at  the  beginning  of  the 
biennial  period  of  the  probable  amount  of  the  funds  to  come  into  the 
working  fund,  this  amount  can  then  be  appropriated  as  a specific 
amount,  and  such  an  appropriation  would  comply  with  the  provisions 
of  the  constitution.16 

In  connection  with  the  subject  here  under  discussion  attention 
should  also  be  called  to  the  fact  that  the  separate  section  on  the  Illi- 
nois and  Michigan  Canal  makes  it  necessary  that  the  earnings  of  the 
canal  be  kept  or  accounted  for,  separately  from  other  state  revenues.17 


Detailed  Provisions  regarding  methods  of  Appropriations. 

Article  IV,  Section  16  of  the  constitution  provides  that  bills  making 
appropriations  for  the  pay  of  members  and  officers  of  the  general 
assembly  and  for  the  salaries  of  the  officers  of  the  government  shall 
contain  no  provision  on  any  other  subject.  Apparently  the  intention 
of  this  provision  was  to  separate  substantive  legislation  from  appro- 
priations, but  it  will  readily  be  seen  from  reading  the  clause  that  it 
does  not  accomplish  this  purpose.  Provided  it  does  not  appropriate 
for  salaries  of  the  officers  of  the  government,  a legislative  act  may  in 
this  state  constitutionally  carry  an  appropriation  to  cover  the  matters 
dealt  with  in  the  substance  of  the  act.  Examples  of  this  will  be  found 
in  the  laws  of  1919,  pages  60,  83,  89,  129,  134,  211  and  215. 

The  constitutional  provision  does,  however,  make  it  necessary 
that  officers  shall  be  appropriated  for  in  a separate  bill  from  that 
containing  appropriations  for-  the  other  expenses  of  the  state  govern- 
ment. Each  office  has  some  persons  in  it  who  are  technically  officers, 
and  they  must  be  appropriated  for  in  one  bill.  Each  such  office  neces- 
sarily has  other  expenses  which  must  be  appropriated  for  in  another 
bill.  That  is,  the  constitutional  provision  in  Illinois  makes  it  necessary 
that  the  appropriations  for  each  office  be  put  in  at  least  two  separate 
bills;  so  that  in  order  to  know  what  has  been  appropriated  for  that 
office,  it  is  necessary  to  look  in  two  distinct  places.  This  requirement 
of  appropriations  in  two  separate  places  for  each  state  office  or  activity 
also  adds  very  seriously  to  the  difficulties  of  accounting  with  respect  to 
the  appropriations  made. 

The  provision  with  respect  to  separate  appropriations  for  officers  of 
the  state  government  should  be  read  with  Article  V,  Section  24  of  the 
constitution,  which  defines  an  office  as  “a  public  position  created  by 
the  constitution  or  law,  continuing  during  the  pleasure  of  the  appoint- 
ing power,  or  for  a fixed  time,  with  a successor  elected  or  appointed.” 
This  constitutional  provision  has  been  subject  to  judicial  construction 
in  a number  of  cases,  but  is  hardly  clearer  for  such  judicial  con- 
struction. 18 

The  distinction  between  an  office  and  an  employment  under  the 
constitution  is  a purely  technical  one ; and  the  general  assembly  at 
practically  every  session  has  to  determine,  at  the  risk  of  its  action  being 

16  Laws  (1919)  947.  189. 

18  People  v.  Joyce,  246  111.  124;  Fergus  v.  Russel,  270  111.  304. 

18  People  v.  Jovce,  246  111.  124;  Fergus  v.  Russel,  270  111.  304. 


279 


unconstitutional,  whether  a position  to  be  appropriated  for  is  an  office 
or  an  employment.  The  Fergus  cases  have  done  something  to  clarify 
this  situation;  but  the  case  of  Fergus  v.  Russel 19  has  not  made  the 
matter  clear,  even  when  this  is  supplemented  by  the  decree  of  the 
lower  court  commented  upon  in  the  report  of  the  attorney  general  for 
1916. 

Not  only  does  the  present  constitutional  provision  make  trouble, 
but  it  separates  the  appropriations  for  the  same  office  into  two  artifi- 
cial divisions  and  it  does  not  accomplish  the  purpose  apparently  aimed 
at.  This  purpose  seems  to  be  the  prevention  of  riders  to  appropriation 
bills  and  the  avoidance  of  appropriations  in  legislation  which  is  not 
dealing  primarily  with  appropriation  matters. 

Article  IV,_Section  18  of  the  constitution  requires  the  general  as- 
sembly to  make  “all  the  appropriations  necessary  for  the  ordinary  and 
contingent  expenses  of  the  government  until  the  expiration  of  the  first 
fiscal  quarter  after  the  adjournment  of  the  next  regular  session.”  This 
provision  was  inserted  upon  the  assumption  that  the  regular  legislative 
sessions  would  end  within  three  months,  and  that  the  end  of  the  first 
fiscal  quarter  after  the  adjournment  of  the  general  assembly  would 
normally  be  July  1. 20  However,  the  practice  for  a number  of  years  has 
been  for  the  general  assembly  to  remain  in  session  until  close  to  the 
first  of  July,  so  that  the  expiration  of  the  first  fiscal  quarter  after  such 
adjournment  becomes  September  30  of  the  fiscal  period.  The  consti- 
tution in  Article  IV,  Section  13,  prescribes  that  no  act  of  the  general 
assembly  shall  take  effect  until  the  first  day  of  July  next  after  its  pas- 
sage unless  in  case  of  emergency  the  general  assembly  by  a vote  of 
two-thirds  of  the  members  elected  to  each  house  otherwise  direct.  It 
is  substantially  necessary,  therefore,  that  the  appropriation  period  be- 
gin with  July  1,  and  if  under  the  constitution  it  is  mandatory  to  make 
all  appropriations  necessary  for  the  expenses  of  the  government  until 
the  end  of  the  first  fiscal  quarter  after  the  adjournment  of  the  next 
regular  session,  this  makes  September  30  the  necessary  period  for 
termination  of  such  appropriations.  To  take  a specific  instance,  the 
general  assembly  in  its  1919  session  is  making  appropriations  effective 
July  1,  1919.  Under  the  constitution,  the  appropriations  made  in  1917 
and  effective  July  1,  1917  continue  until  September  30,  1919,  so  that 
there  is  an  overlapping  three  months’  period  within  which  expendi- 
tures may  have  been  paid  from  either  of  two  appropriations.  If  during 
the  three  months’  period,  new  expenditures  may  be  incurred  by  an  of- 
fice and  charged  to  either  of  two  appropriations,  it  becomes  impossible 
to  obtain  a financial  statement  that  will  mean  very  much  for  either  two- 
year  period.  It  is  clear,  therefore,  that  legislative  appropriations 
should,  if  possible,  be  made  available  for  expenditures  for  a twenty- 
four  months’  period,  without  the  overlapping  of  one  appropriation  with 
that  for  the  succeeding  biennium. 

It  seems  constitutional  to  make  all  appropriations  expressly, 
for  twenty-four  months’  period  (as  has  been  the  case  for  a great  many 
years  with  salary  appropriations),  with  a proviso  that  appropriations 

19  270  111.  304. 

20  Debates,  Constitutional  Convention  of  1870,  I,  540. 


280 


for  the  biennium  shall  be  available  until  September  30  for  expenditures 
incurred  prior  to  July  1 of  that  year.  The  overlapping  quarter  in  each 
biennial  appropriation  period  then  becomes  merely  a period  within 
which  payments  incurred  during  the  twenty-four  months  may  be  paid 
from  appropriations  available  for  such  twenty-four  months.  A step 
towards  the  accomplishment  of  this  result  was  taken  by  an  act  of 
1919.  21 

As  has  been  suggested  above,  the  purpose  contemplated  by  the 
constitution  was  apparently  an  appropriation  period  of  two  years,  and 
there  is  nothing  in  the  constitution  which  makes  it  necessary  that  the 
general  assembly  base  its  appropriations  upon  a two  year  and  three 
months  period.  The  constitution  in  Article  IV,  Section  18,  provides 
that  the  aggregate  amount  of  appropriations  made  by  each  general  as- 
sembly shall  not  be  increased  without  a vote  of  two-thirds  of  the  mem- 
bers elected  to  each  house.  Appropriations  in  addition  to  those  made 
at  the  regular  appropriation  times  are  also  as  a rule  needed  for  use  be- 
fore the  first  of  July  next  after  their  passage,  and  as  emergency  laws 
would  require  a vote  of  two-thirds  of  all  the  members  elected  to  each 
house. 22  The  supreme  court  in  the  case  of  Fergus  v.  Brady  23  says 
that  “the  power  of  the  general  assembly  to  make  appropriations  for  any 
purpose  is  not  exhausted  by  one  appropriation  but  additional  appro- 
priations may  be  made  before  an  indebtedness  is  incurred,  as  occasion 
may  require” ; and  this  statement  is  clearly  borne  out  by  the  language 
ofThe  constitution. 

A number  of  detailed  limitations  upon  appropriations  may  be 
called  attention  to,  without  the  need  of  very  extended  comment.  Arti- 
cle IV,  Section  16,  of  the  constitution  provides  that  “the  general  assem- 
bly shall  make  no  appropriation  of  money  out  of  the  treasury  in 
any  private  law.”  In  view  of  the  debates  in  the  constitutional  conyen- 
tion  of  1870  and  of  the  decision  in  the  case  of  Fergus  v.  Russel,  277 
111.  20,  it  is  difficult  to  know  just  what  if  any  meaning  this  clause  has. 
In  the  decision  of  the  court  the  discussion  of  this  clause  is  necessarily 
tied  up  with  that  of  Article  IV,  Section  26,  prohibiting  suits  against 
the  state ; and  the  prohibition  of  appropriations  in  private  laws,  if  it 
is  to  mean  anything,  must  be  coupled  with  some  plan  by  which  claims 
against  the  state  may  be  paid  without  special  legislation  for  such  pay- 
ment. 

The  constitutional  provisions  against  the  state’s  relinquishing  debts 
(Article  IV,  Section  23)  or  assuming  debts  (Article  IV,  Section  20) 
are  also  of  importance  in  connection  with  the  constitutional  policy  of 
appropriations ; as  is  also  the  provision  of  Article  IV,  Section  19, 
against  the  authorizing  of  extra  compensation  or  the  payment  of  any 
claim  incurred  without  express  authority  of  law.  With  respect  to 
Article  IV,  section  20  attention  should  be  called  to  an  Attorney  Gen- 
eral’s opinion  that : “Provided  the  appropriation  be  for  a public  pur- 
pose, a private  corporation,  association  or  individual  may  be  the  recip- 
ient of  funds  arising  from  taxation  to  be  disbursed  as  directed  by  the 


21  Laws,  1919,  page  951,  Sec.  26. 

22  Article  IV.  Section  13. 

23  277  111.  page  280. 


281 


legislature  and  such  an  appropriation,  authorizing  the  receipt  and  dis- 
bursement of  the  public  funds,  does  not  offend  against  a constitutional 
provision  prohibiting  the  loaning  of  the  credit  of  the  state,  or  ap- 
propriating the  money  of  the  state,  in  aid  of  a private  corporation, 
association  or  individual.”  24  The  provisions  of  Article  IV,  Section 
18  and  Article  IV,  Section  33  regarding  popular  votes  for  the  incurring 
of  indebtedness  and  for  the  construction  of  the  state  house  should  also 
be  noted. 


Incurring  obligations  without  Express  Authority  of  Law. 

Section  17  of  Article  IV  of  the  constitution  provides  that  no  money 
shall  be  drawn  from  the  treasury  except  in  pursuance  of  an  appropria- 
tion made  by  law,  and  section  19  of  the  same  article  provides  that  the 
general  assembly  shall  not  authorize  payments  of  claims  under  any 
agreement  or  contract  made  without  express  authority  of  law.  It 
would  have  been  possible  to  construe  these  provisions  as  prohibiting 
the  incurring  of  any  indebtedness  not  covered  by  appropriations  already 
available,  but  the  supreme  court  was  unwilling  to  go  this  far.  The 
supreme  court  has  taken  the  view  that  some  indebtedness  may  be  in- 
curred by  the  state  although  no  appropriation  is  available  at  the  time 
the  indebtedness  is  incurred.  Under  the  decision  of  the  supreme  court 
no  line  can  be  drawn  which  will  indicate  when  an  expense  'may  be  in- 
curred in  advance  of  an  appropriation  for  the  payment  of  such  ex- 
pense. 

In  the  case  of  Fergus  v.  Brady  25  the  court  said  that  “if  there  is 
some  particular  and  specific  thing  which  an  officer,  board  or  agency  of 
the  state  is  required  to  do,  the  performance  of  the  duty  is  expressly 
authorized  by  law.  That  authority  is  expressed  which  confers  power 
to  do  a particular,  identical  thing  set  forth  and  declared  exactly, 
plainly  and  directly,  with  well  defined  limits,  and  the  only  exception 
under  which  a contract  exceeding  the  amount  appropriated  for  the 
purpose  may  be  valid  is  where  it  is  so  expressly  authorized  by  law. 
An  express  authority  is  one  given  in  direct  terms,  definitely  and  ex- 
plicitly, and  not  left  to  inference  or  to  inplication,  as  distinguished 
from  authority  which  is  general,  implied  or  not  directly  stated  or 
given.  An  example  of  such  express  authority  is  found  in  one  of  the 
deficiency  appropriations  to  the  Southern  Illinois  penitentiary  which 
has  been  paid,  and  serves  only  as  an  illustration.  The  authorities  in 
control  of  the  penitentiary  are  required  by  law  to  receive,  feed,  clothe 
and  guard  prisoners  convicted  of  crime  and  placed  in  their  care,  in- 
volving the  expenditure  of  money,  which  may  vary  on  account  of  the 
cost  of  clothing,  food  and  labor  beyond  the  control  of  the  authorities, 
an$  which  could  not  be  accurately  estimated  in  advance  for  that  reason 
or  by  determining  the  exact  number  of  inmates.  To  extend  the  mean- 
ing of  the  constitutional  requirement  that  there  shall  be  express 

24  Report  of  the  Attorney  General,  1910,  p.  114.  See  also  ibid.  756,  and 
Boehm  v.  Hertz.  182  111.  154  (18991 

25  277  111.  272  (1917),  page  279. 


282 


authority  of  law  for  the  creation  of  a debt  or  the  making  of  an  agree- 
ment or  contract  in  excess  of  an  appropriation  for  the  purpose  beyond 
the  meaning  we  have  given  to  it  would  destroy  and  nullify  the  pro- 
visions of  the  constitution.” 

This  decision  construed  literally  would  permit  any  office  to  incur 
indebtedness  in  the  absence  of  appropriation,  leaving  the  general  as- 
sembly to  meet  such  indebtedness  by  a subsequent  appropriation ; for 
substantially  every  office  has  specific  authority  to  perform  certain 
duties.  However,  the  court  seems  to  have  intended  to  limit  the  in- 
curring of  indebtedness  in  advance  of  appropriations  to  cases  where 
there  is  not  only  express  authority  of  law  but  also  some  actual  emer- 
gency which  makes  it  essential  that  state  institutions  or  other  functions 
should  be  continued  in  a manner  impossible  under  appropriations  then 
available.  The  General  Assembly  cannot  well  refuse  to  appropriate  to 
pay  obligations  already  incurred,  and  the  incurring  of  obligations  in 
advance  of  appropriations  should  be  confined  to  the  narrowest  possible 
limits. 


Summary  on  Conditions  in  Illinois.  The  above  discussion 
indicates  that  there  are  numerous  provisions  in  the  constitution  of 
Illinois  bearing  upon  the  financial  or  budget  policy  of  the  state.  These 
provisions  however  were  not  planned  as  a whole  but  were  intended  to 
meet  particular  difficulties  which  had  presented  themselves  before 
1870,  and  their  relationship  to  each  other  is  largely  a result  of  accident. 
In  connection  with  these  provisions  certain  difficulties  have  presented 
themselves : 

(a)  That  as  to  the  provision  regarding  the  appropriation  to 
specific  objects  in  distinct  items.  This  provision  was  introduced  by 
amendment  in  1884. 

(b)  That  as  to  the  separate  appropriation  bill  for  the  salaries  of 
officers. 

(c)  That  as  to  the  appropriation  period. 

(d)  That  as  to  the  governor’s  share  in  legislation  which,  so  far  as 
the  veto  power  is  concerned,  has  become  a purely  negative  one,  through 
the  fact  that  appropriation  acts  are  passed  at  the  end  of  the  legislative 
sessions. 

(e)  The  relationship  between  revenue  and  appropriations,  which 
is  in  part  a constitutional  difficulty  and  in  part  one  resulting  from  the 
present  statutory  system  with  respect  to  revenue. 

The  present  system  in  this  state  may  be  summed  up  substantially 
as  follows : 

(1)  There  are  effective  budget  estimates  under  legislation  of  1917, 
under  the  control  of  the  governor;  and  the  participation  of  the  gov- 
ernor in  the  appropriation  machinery  may,  under  the  present  consti- 
tution, be  worked  out  as  in  1919  through  the  governor’s  appearing  be- 
fore the  two  houses,  without  the  necessity  of  a constitutional  provision 
for  that  purpose.  Under  the  present  plan  the  governor  assumes  an 


283 


affirmative  share  in  budget  policy,  although  in  the  main  only  for  the  of- 
fices under  his  direct  supervision. 

(2)  Each  house  has  a single  committee  for  the  consideration  of 
appropriations  so  that  the  consideration  of  appropriation  matters  is 
not  scattered  among  a number  of  bodies,  although  revenue  matters  are 
not  concentrated  into  the  same  committee  as  are  appropriations. 

(3)  A uniform  standardization  of  items  has  been  introduced  into 
all  of  the  more  important  appropriation  bills.  There  were 
sixty-eight  appropriation  bills  in  1917  and  seventy-seven  in 
1919.  This  number  is  eutirely  too  large,  although  if  a 
uniform  plan  is  followed  there  is  no  necessity  that  the 
budget  should  be  considered  in  one  bill,  and  there  is  in  fact  a 
disadvantage  of  consideration  in  one  bill  because  of  the  fact  that  legis- 
lative bodies  are  now  organized  more  effectively  for  deliberation  upon 
smaller  units  of  business  than  would  be  presented  by  a single  appropria- 
tion bill.  However,  there  should  be  a material  reduction  in  the  number 
of  appropriation  bills. 

(4)  With  the  uniform  standardization  of  items  a large  task  still 
presents  itself  of  obtaining  a standardization  of  salaries,  so  that  the  ap- 
propriation acts  will  carry  substantially  the  same  salaries  for  the  same 
types  of  duties  in  all  offices  of  the  state,  and  so  also  that  a salary  con- 
trol may  be  established  without  placing  all  salary  details  in  the 
appropriation  acts.  It  has  already  been  suggested  that  lump  sum  ap- 
propriations are  now  made  for  salaries  in  the  charitable  and  penal  in- 
stitutions, and  appropriations  are  made  in  this  manner  for  these  insti- 
tutions, largely  because  a standardization  of  salaries  for  them  has  been 
worked  out  by  the  department  of  public  welfare. 

(5)  All  appropriations  are  limited  to  a definite  period  and  none 
are  renewable  without  express  action  making  new  appropriations.  The 
appropriation  period  makes  trouble  so  far  as  there  is  an  overlapping 
three  months,  and  this  situation  should  be  remedied  by  constitutional 
change,  although  it  can  probably  be  met  in  part  by  legislation. 

(6)  As  to  debt  financing,  attention  should  be  called  to  the  fact 
that  the  $60,000,000  bond  issue  for  good  roads  was  authorized  under 
Article  IV,  Section  18,  more  easily  than  the  $20,000,000  for  a deep 
waterway  under  the  separate  canal  section  of  the  constitution. 


Conditions  in  other  States.  The  movement  for  a more  effec- 
tive state  budget  system  has  been  actively  under  way  during  the  past 
ten  years.  At  the  present  time  there  are  thirty-nine  states  which  have 
provided  either  by  constitutional  amendment  or  by  statute  for  per- 
manent budgetary  procedure  of  one  type  or  another. 

Of  these  states  twenty-two  have  adopted  an  executive  budget, 
that  is,  have  placed  the  budget  control  primarily  in  the  hands  of  the 


284 


governor.  A list  of  these  states  is  given  in  a note.26  Nebraska  and 
several  of  the  other  states  with  an  executive  budget  provided  by 
statute  have  modeled  their  plans  largely  upon  those  of  Illinois. 

Of  the  other  states  which  have  budget  laws  two  confide  the  pre- 
paration of  the  budget  to  legislative  committees ; six  have  budget 
boards  or  committees  composed  of  both  executive  and  legislative 
officers;  and  nine  place  the  preparation  of  the  budget  in  the  hands  of 
an  administrative  board.  Six  of  the  states  having  an  administrative 
board  provide  that  the  governor  shall  be  a member  of  the  budget 
board,  and  in  three  states  the  governor  controls  the  budget  board  by 
appointment.  The  states  having  a budget  organization  through  ad- 
ministrative boards  are  indicated  in  a note.27 

In  the  thirty-nine  states  having  provision  for  a budget,  the  details 
of  organization  and  of  duties  vary  greatly,  and  a discussion  of  such 
details  is  unnecessary  here.28 

Of  the  states  which  have  adopted  some  budget  plan  three  have 
adopted  constitutional  amendments  with  respect  to  this  matter.29 

The  proposed  New  York  constitution  of  1915  contained  a budget 
plan  somewhat  similar  to  that  later  adopted  in  Maryland,  but  this 
constitution  was  rejected  by  popular  vote.  A defective  amendment 
for  a state  budget  plan  was  rejected  by  the  voters  of  California  in 
1918.  A proposed  budget  amendment  similar  to  that  of  Maryland 
was  proposed  by  the  Indiana  legislature  of  1919,  but  has  to  be  adopted 
by  the  legislature  of  that  state  in  1921  before  being  submitted  to  a 
popular  vote. 

The  Maryland  budget  amendment  is  the  first  detailed  constitu- 
tional provision  to  be  adopted  in  this  country.  This  amendment  pro- 
vides that  the  governor  shall  submit  to  the  general  assembly  two 
budgets,  one  for  each  of  the  ensuing  fiscal  years,  and  that  each  budget 
shall  contain  a complete  plan  of  proposed  expenditures  and  estimated 
revenues  for  the  fiscal  year  to  which  it  relates.  Each  budget  is  re- 
quired to  be  divided  into  two  parts,  one  of  governmental  appropria- 
tions for  the  ordinary  conduct  of  the  state  government,  and  the  other 
including  all  other  estimates  of  appropriations.  The  general  assembly 
is  permitted  to  amend  the  bill  by  increasing  or  decreasing  the  items 
relating  to  the  general  assembly  and  by  increasing  the  items  relating 
to  the  judiciary,  but  otherwise  may  not  alter  the  bill  except  to  strike 
out  or  reduce  items.  The  bill  when  passed  becomes  law  immediately 
without  further  action  by  the  governor.  Supplementary  appropria- 
tion bills  may  be  considered  in  either  house  after  the  budget  bill  has 

26  Arizona  1919;  Colorado,  1919;  Idaho,  1919;  Illinois,  1917;  Iowa,  1915, 
Kansas,  1917;  Maryland,  1916;  Massachusetts,  1918;  Minnesota  1915;  Mississippi, 
1918;  Nebraska,  1919;  Nevada,  1919;  New  Hampshire,  1919 ; New  Jersey,  1916 ; New 
Mexico,  1919;  Ohio,  1913;  Oklahoma,  1919;  Oregon,  1913;  South  Carolina,  1919; 
Utah,  1917;  Virginia.  1918;  Wyoming,  1919.  In  New  Hampshire.  Oregon  and 
South  Carolina  the  budget  estimates  are  not  prepared  directly  under  the  super- 
vision of  the  governor. 

27  Alabama,  1914;  California,  1911;  Connecticut,  1915,  amended  1919;  Ken- 
tucky,  1918;  Louisiana,  1916;  Montana,  1919;  Tennessee,  1917;  Washington,  1915, 
and  West  Virginia,  1918. 

28  For  a detailed  analysis  of  the  state  executive  budget  laws,  see  Buck,  A.  E., 
The  Present  Status  of  the  Executive  Budget  in  the  state  governments,  National 
Municipal  Review.  Vol.  VIII,  p.  422.  (August,  1919). 

29  Maryland,  1916;  Massachusetts,  1918;  West  Virginia,  1918. 


285 


been  finally  acted  upon,  but  every  supplemental  appropriation  must 
be  embodied  in  a separate  bill  limited  to  some  single  work,  object  or 
purpose,  and  each  supplementary  appropriation  bill  must  provide  the 
revenue  necessary  to  pay  the  appropriation  so  made.  Each  supple- 
mentary  appropriation  bill  is  subject  to  the  veto  power  both  as  a whole 
and  as  to  items.  In  connection  with  the  budget  bill  the  governor  and 
any  other  executive  officers  designated  by  the  governor  may  appear 
before  either  house  and  they  may  be  required  by  either  house  to  ap- 
pear. 

The  Indiana  budget  amendment  proposed  in  1919  adopts  the  same 
plan  as  the  Maryland  amendment.  The  proposed  budget  provision 
in  the  New  York  rejected  constitution  of  1915  was  similar  to  the 
Maryland  amendment  except  that  there  was  no  requirement  that  a 
supplementary  appropriation  bill  provide  also  the  revenue  to  meet  the 
appropriation  therein  made. 

The  West  Virginia  amendment  of  1918  is  similar  to  the  Mary- 
land amendment,  except  in  the  very  important  respect  that  in  West 
Virginia  the  estimates  are  submitted  by  a board  of  public  works  con- 
sisting of  the  governor,  secretary  of  state,  auditor,  treasurer,  attorney 
general,  superintendent  of  free  schools  and  commissioner  of  agricul- 
ture. That  is,  instead  of  having  a single  executive  officer  responsible 
for  submitting  the  budget  in  West  Virginia,  this  responsibility  is  placed 
in  a board  of  the  more  important  state  executive  officers.  Such  a 
plan  is  much  more  likely  to  lead  to  trading  among  the  various  officers 
than  that  adopted  in  Maryland,  and  actually  reduces  the  governor’s 
power  over  appropriations. 

The  proposed  amendment  rejected  in  California  in  1918  actually 
reduced  the  governor’s  power  over  the  budget  as  contrasted  with  the 
statutory  provisions  now  existing  in  that  state.  There  was  to  be  a 
budget  board  consisting  of  three  members  of  the  state  board  of  con- 
trol and  the  state  controller,  with  the  lieutenant  governor  as  ex-officio 
member.  Budget  estimates  are  now  prepared  by  the  state  board  of 
control,  all  of  whose  members  are  appointed  by  the  governor.  The 
proposed  amendment  provided  that  the  chairman  or  a designated 
member  of  the  budget  board  should  sit  with  each  house  of  the  legis- 
lature when  the  budget  was  under  consideration. 

The  Massachusetts  budget  amendment  adopted  in  1918  places 
upon  the  governor  the  full  responsibility  for  the  preparation  of  the 
budget  estimates  to  be  submitted  to  the  general  court,  but  follows  a 
somewhat  different  plan  from  that  prescribed  by  the  Maryland 
amendment.  The  Massachusetts  amendment  provides  that  the  gover- 
nor shall  recommend  a budget,  and  that  all  appropriations  based  upon 
the  budget  to  be  paid  from  taxes  or  revenues  shall  be  incorporated  in 
a single  bill  to  be  called  the  general  appropriation  bill.  The  general 
court  is  authorized  to  increase,  decrease,  add  or  omit  items  in  the 
budget.  After  the  action  upon  the  governor’s  budget,  special  appro- 
priation bills  may  be  enacted,  each  bill  to  provide  the  specific  means 
for  defraying  the  appropriations  therein  contained.  The  governor  is 
authorized  to  disapprove  or  reduce  items  or  parts  of  items  in  any 
bill  appropriating  money.  That  is,  with  respect  to  the  governor’s 


286 


budget,  the  general  court  may  increase  or  add  items,  but  the  governor 
is  authorized  to  disapprove  or  reduce  items  or  parts  of  items.  The 
Massachusetts  plan  seeks  to  accomplish  the  same  purpose  as  the 
Maryland  plan,  but  gives  to  the  legislature  a somewhat  greater  de- 
gree of  initiative.  In  Maryland  the  legislature  may  not  increase  or 
add  to  the  governor’s  budget,  but  the  budget  becomes  effective  upon 
legislative  action  without  approval  by  the  governor.  In  Massachusetts 
the  general  court  may  increase  items  or  add  items,  but  the  governor 
is  authorized  to  disapprove  or  reduce  items  or  parts  of  items  either  in 
the  general  budget  bill  or  in  any  other  appropriation  bills.  The 
Massachusetts  budget  amendment  is  much  shorter  and  less  detailed 
than  that  of  Maryland,  and  thus  permits  changes  in  methods  of  pro- 
cedure. 


Conclusions.  As  has  already  been  suggested,  thirty-nine 
states  now  have  some  provision  for  a budget  and  in  only  three  of  these 
are  the  budget  arrangements  prescribed  in  the  constitution.  The 
movement  for  a state  budget  is  relatively  new,  and  this  suggests 
caution  about  placing  the  details  of  budget  procedure  in  a constitution. 
The  state  of  Illinois,  with  budget  provisions  in  a statute,  has  operated 
satisfactorily  in  one  session  of  the  general  assembly,  although  there 
are  certain  constitutional  difficulties  with  respect  to  the  satisfactory 
operation  of  the  budget  system  in  this  state.  One  point  to  which 
specific  attention  should  be  called  is  that  no  machinery,  either  statu- 
tory or  constitutional,  will  produce  a single  executive  responsibility 
for  the  budget,  so  long  as  there  is  not  a single  executive  responsibility 
for  the  conduct  of  the  affairs  of  the  state  government.  It  will  be 
practically  impossible  to  have  a number  of  state  executive  officers 
independent  of  the  governor,  and  at  the  same  time  commit  to  the 
governor  a power  to  determine  the  maximum  limits  of  appropriations 
for  such  state  officers.  The  Maryland  and  Massachusetts  plans  vest 
in  the  governor  the  preparation  of  estimates  for  the  whole  of  the  state 
organization,  but  these  plans  will  almost  necessarily  lead  to  a situation 
in  which  the  other  elective  state  officers  determine  their  own  appro- 
priations. That  is,  the  plans  in  Maryland  and  Massachusetts  are  very 
likely  to  work  in  much  the  same  manner  as  the  West  Virginia  plan, 
which  vests  the  preparation  of  budget  estimates  in  a board  composed 
of  all  the  elective  state  officers.  A single  executive  responsibility  for 
the  budget  system  and  for  the  maximum  cost  of  conducting  the  state 
government  depends  necessarily  upon  a responsibility  in  the  head  of 
the  state  executive  for  the  actual  conduct  of  all  of  the  state  executive 
affairs. 

The  determination  of  the  financial  policy  of  the  state  is  neces- 
sarily a joint  task  of  the  legislature  and  of  the  head  of  the  executive 
department.  If  this  task  is  to  be  properly  performed,  the  legislative 
and  the  executive  departments  cannot  act  in  complete  independence 
of  each  other.  The  standard  toward  which  state  developments  in 
this  country  has  tended  is  that  of  placing  responsibility  upon  the  exe- 


287 


cutive  for  the  maximum  amount  to  be  appropriated  for  the  conduct 
of  the  state  government,  with  a legislative  check  upon  the  executive 
to  see  that  appropriations  are  kept  within  a reasonable  maximum, 
and  that  the  appropriations  once  made  are  properly  expended.  For 
the  task  of  the  legislature,  a detailed  auditing  machinery  within  the 
legislative  department  is  not  needed,  but  accounts  of  all  expenditures 
should  be  kept  in  such  a manner  that  the  general  assembly  when  it 
convenes  may  receive  a relatively  brief  and  clear  report  of  what  has 
actually  been  done.  The  legislative  committees  may  then  investigate 
any  points  which,  upon  the  basis  of  such  a report,  seem  to  require 
attention. 

The  budget  difficulties  in  Illinois  are  now  largely  due  to  details 
in  the  constitution  of  1870.  The  vesting  in  the  governor  of  a purely 
negative  share  in  the  financial  policy  of  the  state  through  the  veto,  has 
not  worked  satisfactorily,  and  a long  step  has  been  taken  toward  west- 
ing in  the  governor  a positive  responsibility  in  connection  with  the 
cost  of  the  state  government.  Whether  a greater  share  of  responsi- 
bility shall  be  vested  in  the  governor  with  respect  to  financial  policy 
depends  primarily  upon  the  form  of  executive  organization  to  be 
adopted.  At  present  the  governor  controls  the  estimate  of  expenses 
and  the  actual  expenditure  of  funds  for  the  greater  part  of  the  state 
administration;  and  the  general  assembly  through  its  appropriation 
committees  are  able  for  that  part  of  the  administration  to  obtain  de- 
tailed statements  much  more  readily  than  for  the  portion  of  the  ad- 
ministration not  under  the  governor’s  control.  The  question  as  to 
whether  there  shall  be  a greater  or  a less  degree  of  executive  control 
by  the  governor  is  one  for  the  constitutional  convention.  Aside  from 
this  the  main  problem  is  that  of  removing  some  limitations  which  are 
now  in  the  constitution  with  respect  to  financial  policy. 


288 


IX.  CONSTITUTIONAL  RESTRICTIONS  ON 
PUBLIC  DEBT 


State  Debt  in  Illinois.  The  first  constitution  of  Illinois,  like 
other  constitutions  of  the  time,  contained  no  restrictions  on  the  bor- 
rowing power  of  the  General  Assembly.  During  the  early  years  of 
state  government  financial  transactions  were  on  a small  scale;  and 
while  at  times  there  were  small  deficits,  and  a loan  of  $100,000  was 
made  to  cover  losses  connected  with  the  first  state  bank,  no  serious 
difficulties  developed.  But  after  1835,  the  state  entered  into  extensive 
banking,  canal  and  internal  improvement  schemes,  for  which  large 
loans  were  made ; and  following  the  financial  crisis  there  came  a break 
down  in  state  credit  in  1842.  The  total  state  debt  at  that  time  has 
been  estimated  at  a minimum  of  $15,000,000  and  a maximum  of  $20,- 
000,000,  or  from  20  to  nearly  30  per  cent  of  the  assessed  valuation  of 
taxable  property  ($72,000,000).  Some  efforts  were  made  to  meet  this 
situation  by  the  General  Assembly ; but  the  problem  remained  to  be 
faced  by  the  constitutional  convention  of  1847. 

In  the  constitution  of  1848,  provision  was  made  for  an  annual 
two  mill  tax  for  the  state  debt;  and  a series  of  restrictions  were  im- 
posed on  incurring  further  debt.  To  meet  casual  deficits  or  failures 
in  revenue,  $50,000  might  be  borrowed ; but 

“No  other  debt,  except  for  the  purpose  of  repelling  invasion,  sup- 
pressing insurrection,  or  defending  the  state  in  war  (for  payment  of 
which  the  faith  of  the  state  shall  be  pledged)  shall  be  contracted, 
unless  the  law  authorizing  the  same  shall,  at  a general  election,  have 
received  a majority  of  all  the  votes  cast  for  members  of  the  General 
Assembly  at  such  election.” 

The  General  Assembly  was  also  required  to  provide  for  publishing 
the  law,  and  to  make  provision  for  the  payment  of  interest  by  a tax 
or  from  other  sources  of  revenue;  and  the  tax  law  must  be  submitted 
to  the  people  with  the  law  authorizing  the  debt. 

The  loan  of  state  credit  in  aid  of  private  enterprises  was  also 
prohibited. 

Under  these  provisions,  the  state  debt  was  largely  paid  off  within 
twenty  years,  and  substantially  no  additional  state  debt  was  incurred. 
By  1870,  the  state  debt  was  only  $4,890,937,  or  barely  one  per  cent 
of  the  assessed  valuation  of  property.  The  debt  was  further  reduced 
to  $1,446,666  in  1880 — most  of  this  consisting  of  amounts  due  to 
educational  trust  funds. 

In  the  constitution  of  1870,  the  provisions  in  the  constitution  of 
1848  as  to  state  debt  were  repeated  (as  section  18  of  Article  IV),  with 


289 


an  increase  in  the  debt  allowed  to  meet  casual  deficits  from  $50,000  to 
$250,000.  Attention  should  also  he  called  to  the  fact  that  Article  IV, 
Section  18  lays  down  a rule  that  appropriations  shall  not  exceed  the 
amount  of  revenue  authorized  to  be  raised.  Comment  upon  the  opera- 
tion of  this  provision  will  be  found  on  page  276  of  this  pamphlet. 

A constitutional  amendment  to  separate  section  3,  adopted  in 
1908,  authorized  the  issue  of  state  bonds,  not  to  exceed  $20,000,000 
for  the  construction  of  a deep  waterway  from  Lockport  to  Utica. 

In  1918,  a state  bond  issue  of  $60,000,000  was  authorized  by 
popular  vote,  for  the  construction  of  a system  of  state  roads,  interest 
and  principal  to  be  paid  from  license  fees  on  motor  vehicles. 

In  1916,  the  gross  state  debt  of  Illinois  was  $7,220,869,  a large 
part  of  which  was  outstanding  warrants,  representing  a temporary  de- 
ficit, and  covered  by  taxes  for  that  year.  The  net  debt  was  $2,066,920. 
In  1918,  the  gross  state  debt  was  $3,996,852,  of  which  $1,939,932  was 
for  outstanding  warrants  and  other  current  obligations.  The  net 
debt  was  $2,056,920,  to  educational  trust  funds.  The  bonds  recently 
authorized  have  not  yet  been  issued. 


Municipal  Debts  in  Illinois.  While  the  state  debt  had  become 
unimportant  by  1870,  municipal  debts  had  increased  rapidly,  especially 
during  the  preceding  decade,  by  grants  of  aid  for  the  construction  of 
railroads.  In  1870,  the  aggregate  of  municipal  debts  in  Illinois 
amounted  to  $37,300,933,  which  was  somewhat  more  than  7^2  per  cent 
of  the  assessed  valuation  of  property  in  the  state,  though  less  than  2 
per  cent  of  the  estimated  true  value  of  property.  In  several  counties 
the  local  debts  amounted  to  more  than  10  per  cent  of  the  assessed  valu- 
ation of  property;  and  in  two  counties  (Cook  and  Macoupin)  to  more 
than  20  per  cent. 

After  extended  discussion  in  the  convention,  the  constitution  of 
1870  placed  a series  of  restrictions  on  municipal  debt,  in  Section  12 
of  Article  IX  and  another  section  separately  submitted  and  adopted. 
These  provide  as  follows : 

“Section  12.  No  county,  city,  township,  school  district,  or  other 
municipal  corporation,  shall  be  allowed  to  become  indebted  in  any  man- 
ner or  for  any  purpose,  to  an  amount,  including  existing  indebtedness 
in  the  aggregate  exceeding  five  per  centum  on  the  value  of  the  taxa- 
ble property  therein,  to  be  ascertained  by  the  last  assessment  for  state 
and  countv  taxes,  previous  to  the  incurring  of  such  indebtedness.  Any 
county,  city,  school  district,  or  other  municipal  corporation,  incurring 
any  indebtedness  as  aforesaid,  shall  before,  or  at  any  time  of  doing  so, 
provide  for  the  collection  of  a direct  annual  tax  sufficient  to  pay  the 
interest  on  such  debt  as  it  falls  due,  and  also  to  pay  and  discharge  the 
the  principal  thereof  within  twenty  years  from  the  time  of  contracting 
the  same.  This  section  shall  not  be  construed  to  prevent  any  county, 
city,  township,  school  district,  or  other  municipal  corporation,  from 
issuing  their  bonds  in  compliance  with  any  vote  of  the  people  which 
may  have  been  had  prior  to  the  adoption  of  this  constitution  in  pur- 
suance of  any  law  providing  therefor.” 


290 


The  separate  section  prohibited  municipalities  from  subscribing 
to  stock  or  loaning  their  credit  to  any  railroad  or  private  corporation, 
unless  authorized  under  existing  laws  by  a vote  of  the  people  of  such 
municipalities  prior  to  the  adoption  of  this  article. 

A constitutional  amendment,  adopted  in  1890,  adding  a new  sec- 
tion (13)  to  Article  IX,  authorized  the  City  of  Chicago  to  issue  not  to 
exceed  $5,000,000  in  bonds  on  account  of  the  World’s  Columbian  Ex- 
position, provided  the  amendment  received  a majority  of  the  votes  cast 
in  Chicago. 

The  constitutional  amendment  authorizing  special  legislation  for 
Chicago  (section  34  of  Article  IV),  adopted  in  1904,  authorized  a 
total  debt  for  the  city  (including  the  debt  of  all  municipal  corporations 
within  the  city  and  the  city’s  share  of  the  county  and  sanitary  district 
debt)  of  not  to  exceed  five  per  cent  of  the  full  value  of  taxable  prop- 
erty; and  also  required  a referendum  on  all  new  bonded  indebtedness 
except  for  refunding  purposes. 

The  restrictions  on  municipal  debt,  in  the  constitution  of  1870, 
checked  the  increase  of  municipal  debt  for  a time.  In  1880  the  ag- 
gregate municipal  debt  was  about  $45,000,000,  an  increase  of  some- 
thing more  than  20  per  cent,  and  a reduction  in  the  percentage  of  debt 
to  both  assessed  valuation  and  the  estimated  true  value  of  property. 
By  1890,  the  aggregate  municipal  debt  had  decreased  to  $40,000,000. 

But  since  1890,  municipal  debts  have  increased  steadily,  to  $78,- 
500,000  in  1902  and  $137,000,000  in  1912.  This  increase  was  at  about 
the  same  rate  as  the  increase  in  the  estimated  true  value  of  property. 
The  increase  since  1912  has  probably  been  at  a relatively  larger  rate ; 
but  no  provision  is  made  in  Illinois  for  official  data  relating  to  munici- 
pal debts,  and  complete  data  are  not  available  since  the  last  census  re- 
port. 

This  recent  increase  of  municipal  debts  has  been  aided  by  legis- 
lation modifying  the  effect  of  the  constitutional  provisions.  The 
basis  of  assessed  valuation,  which  was  fixed  at  one-fifth  of  true 
value  in  1898,  was  raised  to  one-third  of  true  value  in  1909,  and  has 
again  been  raised  to  one-half  of  true  value  in  1919.  The  object 
of  these  changes  has  been  to  enlarge  the  borrowing  powers  of  mu- 
nicipalities ; and  while  altering  the  effect  of  the  constitutional  pro- 
visions, cannot  be  said  to  conflict  with  their  terms. 

Further  enlargement  of  municipal  debt  has  also  been  permitted 
by  legislation  authorizing  the  creation  of  overlapping  municipal  cor- 
porations covering  the  same  territory,  each  authorized  to  incur 
debt  by  borrowing.  The  existence  of  such  overlapping  districts 
is  recognized  in  the  constitutional  provisions,  and  the  limits  estab- 
lished apparently  were  intended  to  apply  to  each  municipal  cor- 
poration ; but  the  formation  of  new  types  of  such  districts,  such 
as  park  and  sanitary  districts,  has  substantially  enlarged  the  total 
amount  of  debt  which  may  be  incurred  for  the  same  territory. 


Judicial  Decisions.  Some  judicial  decisions  interpreting  the 


291 


constitutional  provisions  relating  to  municipal  debts,  and  establish- 
ing rules  for  their  applicaton,  may  be  noted.  , 

The  limitation  on  municipal  debt  in  Section  12  of  Article  IX, 
has  been  held  to  apply  to  each  municipal  corporation  taken  singly, 
and  is  not  affected  by  the  pre-existing  debt  of  other  municipal  cor- 
porations covering  the  same  or  a part  of  the  same  territory. 1 

But  the  establishment  by  a school  district  of  a high  school  un- 
der the  control  of  a separate  board  of  education  does  not  authorize 
the  school  district  to  incur  indebtedness  in  excess  of  the  constitu- 
tional limit  of  five  per  cent.2 

The  limitation  on  municipal  debt  applies  to  a contract  for  a 
term  of  years  relating  to  ordinary  current  expenses  payable  out 
of  the  current  revenue. 3 

A city  may  acquire  a system  of  waterworks  by  pledging  the 
income  until  it  shall  pay  for  the  system,  and  no  indebtedness  is 
created.  But  an  obligation  to  pay  with  the  income  of  property  al- 
ready owned  by  the  city  is  not  different  from  an  obligation  to  pay 
with  any  other  funds,  so  far  as  the  question  whether  the  trans- 
action amounts  to  a debt  is  concerned.4 

Street  railway  certificates  issued  by  a city  and  secured  by 
mortgage  on  the  street  railway  property,  together  with  the  right 
to  operate  such  railways  for  a period  of  20  years  after  foreclosure, 
are  held  to  create  an  indebtedness  against  the  city ; and  the  issue 
of  such  certificates  is  illegal  if,  added  to  the  existing  indebtedness, 
the  total  will  exceed  the  constitutional  limit.5 

Tax  anticipation  warrants  are  not  contracts,  and  a city  is  not 
indebted  on  account  of  having  issued  them.  Such  warrants,  pay- 
able out  of  a tax  already  levied,  do  not  add  to  the  indebtedness  of 
a city  which  has  reached  the  constitutional  limit,  and  they  create 
no  obligation  on  the  part  of  the  city.6 

Drainage  assessments  are  not  debts  within  the  meaning  of  the 
constitutional  limitation.  They  are  in  the  nature  of  an  exchange  for 
benefits  received  by  the  enhanced  value  of  the  property  derived 
from  the  improvement,  to  pay  for  which  the  assessment  is  made. 
The  limitation  of  the  constitution  is  against  becoming  indebted  for 
corporate  purposes  and  has  no  reference  whatever  to  assessments 
for  local  improvements.7 

The  decision  in  the  Lobdell  case,  relating  to  street  railway 
certificates,  is  of  special  importance,  in  limiting  the  borrowing  pow- 
ers, of  cities  for  debts  secured  by  public  utility  property.  Such 
debts,  outside  of  the  ordinary  limits,  are  now  definitely  authorized 
by  the  constitutions  of  Michigan  and  Ohio ; and  somewhat  differ- 


1 Wilson  v.  Board  of  Trustees  113  111.  443  (1890). 

2 Russell  v.  High  School  Board.  212  111.  327  (1904). 

3 Prince  v.  City  of  Quincy.  128  111.  443  (1889). 

4 City  of  .ToBet  v.  Alexander.  194  111.  457  (1902):  Hast  Moline  v.  Pope,  224 
111.  386  (1906);  Schnell  v.  Rock  Island.  232  111.  89,  ^ (1908). 

5 Lobdell  v.  Chicago.  227  111.  218  (1907). 

6 Booth  v.  Opel  244  111.  317,  327  (1910). 

7 People  v.  Honeywell,  258  111.  319  (1913). 


292 


ent  provisions  for  the  same  purpose  have  been  adopted  in  New 
York  and  Pennsylvania.  A number  of  other  states  authorize  addi- 
tional loans  for  public  utilities  above  the  ordinary  debt  limit. 


State  and  Municipal  Debts  in  Illinois .a 


Year. 

State  Debt. 

Total  Mu- 
nicipal Debt. 

Assessed 

Valuation. 

Estimated  True 
Value  of  Tax- 
able Property. 

1842 

$20,486,097 

17,500,000 

10,277,160 

4,890,937 

1,446,466 

1,811,396 

2,155,122 

2,272,620 

2.066.920 

2.056.920 

$ 72,605,424 
149,294,805 
389,207,372 
480,664,058 
786,616,394 
809,682,926 
t, 030, 292, 435 
2,343,673,232 
2,499,311,888 
2,626,084,386 

1852 

I860 

$ 871,860,282 
2,121,680,579 

3.092.000. 000 
4,830,750,000 

7.500.000. 000 
14,596,467,087 

1870 

1880 

1890 

1902 

1912 

1916 

$ 37,300,933 
44,942,422 
40,656,742 
78,559,937 
137,207,747 

1918 

a United  States  Census  reports  1850,  1870,  1902,  1912;  Haig:  History  of 
the  General  Property  Tax  in  Illinois;  Census  Reports  on  Financial  Statistics  of 
States. 

Local  Debts  in  Certain  Illinois  Counties .a 


Total  local 

Per  Cent 

debt.  All 

Assessed 

Debt  to 

Per 

County  and  Year. 

local  gov- 
ernments. 

Valuation. 

Valuation. 

Capita  Debt. 

Adams  County: 

1870 

$ 1,648,820 
2,269,114 
1,725,408 
1,058,403 
469,265 

$ 13,198,067 

17,189,806 
13,330,493 
11,740,458 
23,509,170 

13 

$29.29 

38.37 

1880 

13 

1890 

13 

27.88 

1902 

9 

,15.54 

1912 

2 

7.27 

Cook  County: 

1870 

17,769,000 
19,880,913 
19,387,637 
57,291,32  2 
99,193,693 

85,684,584 

148,982,393 

240,230,792 

433,489,922 

1,007,504,357 

21 

50.77 

1880 

13 

32.72 

1890 

8 

16.27 

1902 

13 

29.11 

1912 

9 

38.31 

Macoupin  County: 

1870 

22 

46.00 

1,508,000 

1,119,460 

1,238,230 

532,159 

180,560 

6,863,906 

11,010,194 

9,703,751 

7,297,426 

15,092,170 

1880.  

10 

31.82 

1890 

12 

30.66 

1902 

7 

12.48 

1912 

1 

3.38 

Peoria  County: 

1870 

17 

34.00 

1,615,000 

1,281,821 

1,308,835 

1,059,059 

1,901,846 

9,475,030 

14,105,512 

15,102,659 

18,351,516 

36,963,889 

1880 

9 

23.16 

1890 

3 

18.60 

1902 

6 

11.48 

1912 

5 

18.28 

St  Clair  County: 

1870 

3 

5.00 

253,000 

731,194 

960,600 

1,245,738 

4,414,380 

9,140,021 

15,466,367 

15,430,176 

16,727,457 

34,154,576 

1880 

5 

11.83 

1890 

6 

14.43 

1902 

8 

13.73 

1912 

13 

33.79 

Sangamon  County: 

10 

28.05 

1870 

1,300,672 

1,110,959 

1,234,427 

1,405,295 

1,891,543 

12,995,035 

1880 

17,318,488 

6 

21.00 

1890 

15,351,434 

17,284,884 

41,014,292 

8 

20.17 

1902 

8 

19.07 

1912 

4 

19.43 



“United  States  Census  Reports  1850,  1870,  1902,  1912. 


293 


Municipal  Debts  of  Illinois  Cities , ipi8.a 


City. 

Total  debt. 

City 

Corpora- 

tion. 

School 

District. 

Other  local 
govern- 
ments.1’ 

Chicago 

East  St.  Louis 

Peoria 

Springfield 

Rockford 

Decatur 

$127,293,278 

2,859,062 

2,036,586 

2,045,598 

2,308,629 

1,424,664 

1,206,903 

409,643 

1,142,155 

781,836 

$80,485,943 

1,928,686 

1,406,540 

1,325,783 

1,679,581 

855,172 

1,124,909 

239,643 

822,155 

619,936 

$2,986,055 

540,080 

558.000 

594.000 
435,423 
569,492 

81,994 

170.000 

320.000 
161,900 

$43,821,980 

390,296 

72,037 

125,815 

193,625 

Joliet 

Quincy 

A lirnra 

Danville 

a U.  S.  Census,  Financial  Statistics  of  Cities,  1918. 
b Includes  county  (for  Chicago  only),  sanitary  and  park  districts. 


Development  of  Constitutional  Restrictions.  The  early  state 
constitutions  contained  no  restrictions  on  public  debt.  Some  of  the 
states  had  incurred  relatively  large  debts  during  the  Revolution ; 
but  these  were  assumed  by  the  national  government.  Until  after 
the  War  of  1812-15,  state  activities  were  unimportant  and  there 
was  little  borrowing  or  debt.  But  beginning  with  New  York  in 
1817,  many  of  the  states'  entered  on  an  active  period  of  internal  im- 
provements, for  which  large  debts  were  incurred.  In  New  York, 
the  state  debt  was  increased  $7,737,770  from  1817  to  1825,  and  in 
1846  the  total  debt  was  about  $26,000,000.  In  1830,  the  combined 
debt  of  all  the  states  was  not  more  than  $13,000,000.  By  1839  it 
exceeded  $183,000,000. 

Following  the  financial  crisis  of  1837  and  the ‘failure  of  many 
undertakings,  which  had  been  expected  to  be  self-sustaining,  it 
became  necessary  to  levy  heavy  taxes  to  pay  interest  and  principal 
on  these  debts.  This  led  to  a sharp  reversal  of  public  opinion, 
and  the  rapid  adoption  of  limitations  on  state  debt  by  the  amend- 
ment and  revision  of  state  constitutions. 

The  first  restriction  adopted  appears  to  have  been  in  the  Flor- 
ida constitution  of  1838,  which  provided  that : “The  General  As- 

sembly shall  not  pledge  the  faith  and  credit  of  the  state  to  raise 
funds  in  aid  of  any  corporation  whatsoever.”  The  Rhode  Island 
constitution  of  1842  contained  more  restrictive  provisions,  as  fol- 
lows: ■ - - 

“The  general  assembly  shall  have  no  power  hereafter,  with- 
out the  express  consent  of  the  people,  to  incur  State  debts  to  an 
amount  exceeding  fifty  thousand  dollars,  except  in  time  of  war,  or 
in  case  of  insurrection  or  invasion ; nor  shall  they  in  any  case,  with- 
out such  consent,  pledge  the  faith  of  the  state  for  the  payment  of 
the  obligations  of  others.  This  section  shall  not  be  construed  to 
refer  to  any  money  that  may  be  deposited  with  the  State  by  the 
Government  of  the  United  States.” 


294 


Michigan  in  1843  adopted  an  amendment  requiring  a referendum 
on  laws  creating  state  debt,  except  for  ordinary  expenses  or  in  case  of 
insurrection,  invasion  or  war.  The  New  Jersey  constitution  of  1844 
prohibited  loaning  the  credit  of  the  state,  and  contained  a more  specific 
provision,  requiring  for  debts  over  $100,000,  (except  in  case  of  war, 
insurrection  or  invasion)  a referendum  on  the  law,  which  “shall  pro- 
vide the  ways  and  means,  exclusive  of  loans,”  to  pay  the  interest  and 
(within  35  years)  the  principal. 

Restrictions  on  state  debt  were  adopted  in  Louisiana  and  Texas 
in  1845 ; in  New  York  (where  the  subject  had  been  actively  discussed 
for  several  years)  and  Iowa  in  1846 ; in  Illinois,  Maine  and  Wisconsin 
in  1848 ; in  California  in  1849  ; in  Kentucky  in  1850 ; in  Maryland, 

, Indiana  and  Ohio  in  1851 ; in  Kansas  in  1855 ; and  in  Pennsylvania, 
Minnesota  and  Oregon  in  1857.  Since  then  such  restrictions  have  been 
adopted  in  most  of  the  other  states,  and  have  also  been  incorporated  in 
the  constitutions  of  new  states  as  they  were  formed.  At  the  present 
time  limitations  on  borrowing  power  are  in  the  constitutions  of  all  the 
states  except  three — Connecticut,  New  Hampshire  and  Vermont. 

Constitutional  restrictions  on  local  public  debt  were  imposed  for 
the  most  part  later  than  restrictions  on  state  debt.  This  was  due  in 
part  to  the  fact  that  such  debts  did  not  become  large  enough  to  attract 
attention  until  later  than  the  state  debt  period.  Moreover,  under  the 
general  doctrine  of  legislative  control  and  strict  construction  of  munic- 
ipal powers,  local  authorities  had  only  such  powers  of  borrowing  and 
taxation  as  were  granted  by  the  legislature.  Nevertheless,  as  early  as 
1846,  the  New  York  constitution  specifically  provided  that  it  was  the 
duty  of  the  legislature  to  restrict  the  powers  of  municipal  corporations 
to  tax,  borrow  money,  contract  debts  or  loan  their  credit.  Similar 
provisions  were  placed  in  the  Wisconsin  constitution  of  1848,  in  that 
of  Michigan  in  1850,  in  Ohio  in  1851,  and  later  in  other  states. 

About  the  same  time  more  definite  prohibitions  against  loaning 
the  credit  of  municipalities  to  private  enterprises  began  to  appear.  The 
Indiana  constitution  of  1851  prohibited  counties  from  loaning  their 
credit  or  subscribing  to  the  stock  of  private  corporations ; and  the 
Ohio  constitution  of  the  same  year  imposed  a similar  prohibition  on 
counties,  cities,  towns  and  townships.  Similar  provisions  were 
adopted  by  Oregon  and  Pennsylvania  in  1857 ; and  partial  limitations 
in  several  other  states  before  1870. 8 In  1857,  Iowa  imposed  a five  per 
cent  debt  limit  on  municipalities. 

A more  general  movement  for  constitutional  restrictions  on 
municipal  debt  began  about  1870.  This  was  a result  of  the  rapid  in- 
crease in  such  debts  in  the  decade  following  the  civil  war.  These  debts 
were  incurred  to  a large  extent  for  subsidizing  railroads ; and  municipal 
loans  for  this  purpose  became  more  important  partly  because  of  the 
restrictions  on  state  debts  for  such  purposes.  By  1870,  the  aggregate 
local  public  debts  in  the  United  States  amounted  to  $515,810,060, — 
about  50  per  cent  more  than  the  state  debts  at  that  time.  From  1866 

8 Nevada  (1864),  Missouri  (1865),  Maryland  (1867),  Mississippi  and  North 
Carolina  (1868),  Secrist:  Constitutional  Restrictions  on  Ptiblic  Indebtedness,  pp. 

59,  68. 


295 


to  1876  the  aggregate  debt  of  130  cities  in  the  United  States  increased 
from  $221,000,000  to  $604,000,000.9 

By  1880,  the  constitutions  of  eighteen  states  contained  prohibitions 
against  municipalities  loaning  their  credit  or  subscribing  to  the  stock 
of  private  corporations.  Other  states  adopted  such  restrictions  later ; 
and  there  are  now  thirty  states  which  prohibit  such  subsidies  to  all 
private  corporations ; several  other  states  have  prohibitions  against 
such  aid  to  some  classes  of  corporations,  as  railroads ; and  in  a few 
states  municipalities  can  loan  their  credit  only  if  approved  by  popular 
vote. 

At  the  same  time  further  restrictions  were  imposed  on  the  total 
amount  of  municipal  debt,  the  duration  of  loans,  and  methods  of  pay- 
ment. Illinois  imposed  a limit  of  five  per  cent  of  the  assessed  valua- 
tion in  1870 ; West  Virginia  in  1872  and  Wisconsin  in  1873  established 
the  same  limit.  A seven  per  cent  limit  was  adopted  in  Pennsylvania 
in  1873  and  in  Georgia  in  1877.  Indiana  imposed  a two  per  cent  limit 
in  1881,  and  New  York  a ten  per  cent  limit  in  1884.  Twenty-eight 
states  now  place  limitations  on  the  amount  of  local  debt ; and  a number 
of  states  require  a referendum  on  the  issue  of  bonds  beyond  the 
normal  limit,  or  impose  other  restrictions. 

In  recent  years,  however,  notably  since  1900,  there  has  been  a 
counter  tendency  to  relax  the  restrictions  on  both  state  and  municipal 
debts.  This  has  been  done  by  authorizing  loans  for  certain  purposes, 
such  as  roads  and  public  utilities ; and  debts  of  considerable  propor- 
tions have  also  been  incurred  under  the  referendum  provisions  in  a 
number  of  states. 

The  effects  of  the  constitutional  provisions  relating  to  public  debt 
are  indicated  in  the  table  below.  State  debts,  which  had  increased  very 
rapidly  in  the  decade  after  1830,  showed  almost  no  further  increase 
in  the  next  decade  to  1850.  During  the  civil  war  there  was  another 
increase  of  state  debts,  mainly  in  the  southern  states,  though  there  were 
still  debts  of  considerable  amounts  in  New  York,  Pennsylvania  and 
Massachusetts.  After  1870,  state  debts  decreased  from  $352,000,000 
to  $211,000,000  in  1890.  During  the  next  12  years  there  was  a slight 
increase ; and  since  then  the  result  of  the  new  tendencies  are  reflected 
in  a decided  increase  to  $345,000,000  in  1912,  and  $502,492,713  in  1918. 

Municipal  debts  have  continued  to  increase  rapidly.  In  the  decade 
1880  to  1890,  the  increase  was  relatively  slight,  and  there  was  a de- 
crease in  the  per  capita  local  debt.  Since  1890,  the  increase  of  munic- 
ipal debt  has  been  rapid  and  continuous, — about  eighty  per  cent  in  the 
twelve  years  from  1890  to  1902,  and  more  than  doubling  in  the  next 
decade. 

9 Secrist.  Constitutional  Restrictions , p.  56. 


/ 


296 


State  and  Local  Debts* 


State  Debts. 

Per  Capita. 

Local  Debts. 

Per  Capita. 

1830 

$ 13,000,000 
183,000,000 
191,508,922 
352,866,698 
274,745,772 
211,210,487 
234,908,873 
345,942,305 
459,661,269 
502,492,713 

$ 1.30 
13.00 

1839 

1852 

1870 

10.50 

5.48 

3.37 

2.99 

3.64 

4.59 

4.86 

$ 515,810,060 
848,532,875 
925,989,603 
1,630,069,610 
3,475,954,353 

$15.35 

16.92 

14.79 

20.74 

36.59 

1880 

1890 

1902  

1912 

1916 

1918 

a U.  S.  Census  Reports  1850,  1870,  1902,  1912:  Reports  on  Financial  Statis- 

tics of  States;  Secrist,  Constitutional  Restrictions  upon  Public  Indebtedness. 


Restrictions  on  State  Debts.  While  all  but  three  state  con- 
stitutions impose  restrictions  on  state  debt,  there  are  considerable 
variations  in  the  terms  of  the  constitutional  provisions,  and  in  the 
degree  of  limitations.  Some  writers  have  grouped  the  states  in 
classes,  placing  in  one  class  those  which  prohibit  state  debt  except  for 
certain  purposes,  and  in  another  class  those  which  limit  the  amount 
of  debt,  subject  to  certain  exceptions.  But  most  of  the  states  which 
are  classed  as  prohibiting  debt  provide  for  loans  to  meet  temporary 
deficits  up  to  a certain  amount,  and  there  seems  to  be  no  important 
distinction  on  this  ground. 

Most  of  the  states  permit  loans  for  comparatively  small  amounts, 
either  without  limitation  as  to  purpose  or  to  meet  casual  deficits  or 
temporary  emergencies,  or  (in  a few  states)  for  expenses  not  other- 
wise provided  for.  The  amounts  thus  authorized  range,  in  most  of 
the  states  from  $50,000  in  Maryland  and  Rhode  Island  to  $500,000 
in  Kentucky.  In  Ohio  the  limit  is  $750,000;  in  New  York,  Pennsyl- 
vania and  Kansas  $1,000,000 ; and  in  Idaho  $2,000,000.  The  last 
named  is  the  most  liberal  of  the  states  naming  a definite  amount ; and 
with  this  may  be  classed  Utah,  which  permits  loans  for  general  pur- 
poses up  to  one  and  one-half  per  cent  of  the  assessed  valuation, 
Nevada  to  one  per  cent,  and  Wyoming,  which  requires  a referendum  on 
loans  exceeding  the  taxes  of  the  current  year,  and  imposes  a maximum 
limit  of  one  per  cent.  The  limits  in  the  other  states,  fixed  in  most 
cases  many  years  ago,  are  so  low,  that  they  are  inadequate  to  take 
care  of  temporary  difficulties  on  the  present  scale  of  state  expenditures. 

Delaware,  Indiana,  North  Carolina,  South  Carolina,  Virginia  and 
West  Virginia,  permit  loans  for  casual  deficits  or  for  ordinary  and 
current  expenses,  without  fixing  any  definite  limit.  Louisiana  pro- 
hibits state  debt  except  for  refunding,  or  for  suppressing  insurrection, 
repelling  invasion  or  in  time  of  war.  Arkansas  prohibits  the  state  and 
municipalities  from  loaning  their  credit  for  any  purpose,  prohibits 
municipalities  from  incurring  interest  bearing  debt  except  to  provide 
for  debt  existing  at  the  adoption  of  the  constitution  of  1874,  and  pro- 


297 


vides  that  “the  State  shall  never  issue  any  interest  bearing  warrants 
or  scrip.” 

Most  of  the  states  except  from  the  debt  restrictions,  loans  to 
suppress  insurrection,  to  repel  invasion  or  in  time  of  war;  and  loans 
for  such  purposes  may  be  authorized  by  the  legislatures  without  limit. 
But  three  states — Arkansas,  Missouri  and  South  Carolina — make  no 
such  exception. 

A number  of  states  (15)  authorize  loans  for  refunding  previously 
existing  debts.  Most  of  these  are  southern  states  (Arkansas,  Florida, 
Georgia,  Louisiana,  Missouri,  Kentucky,  .New  Mexico,  Texas,  Vir- 
ginia and  West  Virginia)  ; but  there  are  similar  provisions  in  the  con- 
stitutions of  Delaware,  Ohio,  Pennsylvania  and  North  Dakota.  The 
Colorado  constitution  has  a specific  provision  authorizing  loans  not  to 
exceed  $2,115,000  to  fund  outstanding  warrants,  and  the  interest 
thereon.  Indiana  authorizes  loans  to  pay  the  interest  on  the  state 
debt. 

Fifteen  states  authorize  debts  outside  of  the  limitations,  provided 
the  law  for  the  loans  is  submitted  to  a popular  referendum.  These 
include  New  York,  New  Jersey,  Rhode  Island  and  South  Carolina  in 
the  eastern  part  of  the  country ; Illinois,  Iowa,  Kansas,  Kentucky  and 
Okahoma  in  the  central  section;  and  California,  Idaho,  Montana,  New 
Mexico,  Washington  and  Wyoming  in  the  western  section.  In  most 
cases  such  loans  are  authorized  by  a majority  of  those  voting  on  the 
question;  but  in  Kansas  a majority  of  those  voting  at  the  election  is 
required.  Usually  there  is  no  limit  as  to  the  amount  which  may  be 
borrowed,  if  approved  by  the  popular  referendum;  but  New  Mexico 
and  Wyoming  tix  a maximum  limit  of  one  per  cent  for  the  total 
amount  of  the  state  debt. 

In  most  of  the  other  states,  debts  except  for  the  amounts  and 
purposes  authorized,  are  prohibited. 

Delaware,  Maryland,  Massachusetts  and  North  Carolina  impose 
special  conditions  on  borrowing.  In  Delaware  a vote  of  three-fourths 
of  the  members  elected  to  each  House  is  required,  except  to  meet 
casual  deficits,  to  pay  debts,  or  for  invasion,  insurrection  or  war.  In 
Maryland  no  debt  may  be  contracted  unless  by  a law  providing  for 
a tax  to  pay  interest  and  to  discharge  the  principal  within  fifteen  years, 
except  for  temporary  deficits  and  for  defense.  In  North  Carolina, 
no  new  debt  may  be  contracted  (except  for  casual  deficits  or  for  de- 
fense, or  to  suppress  insurrection)  until  the  state  bonds  are  at  par. 
Massachusetts  requires  a vote  of  two-thirds  of  each  House  for  loans 
except  in  case  of  invasion,  insurrection  or  for  defense  or  loans  in 
anticipation  of  revenues. 

In  addition  to  the  general  restrictions  on  state  debts,  nearly  all 
of  the  state  constitutions  (the  exceptions  are  Connecticut,  New  Hamp- 
shire and  Vermont),  prohibit  the  loan  or  pledge  of  state  credit  to 
private  enterprises  or  localities  or  both,  and  also  prohibit  the  state 
from  subscribing  to  the  stock  of  private  corporations,  or  assuming 
the  liabilities  of  individuals,  associations  or  corporations.  About 
fifteen  states  prohibit  the  loan  of  state  credit  to  local  government  units ; 
and  about  the  same  number  prohibit  the  state  from  assuming  the  debts 


298 


of  local  governments,  unless  incurred  to  repel  invasion,  suppress  in- 
surrection or  defend  the  state.  In  Mississippi  and  Tennessee  the  re- 
strictions on  aid  to  private  enterprises  are  the  only  limitations  on  state 
debt. 

Some  states  also  have  more  specific  prohibitions  against  state 
aid  to  particular  undertakings,  such  as  railroads,  canals  and  telegraph 
lines.  Such  provisions  are  in  the  constitutions  of  Illinois,  Montana, 
Minnesota,  New  Mexico,  Utah  and  Wyoming.  But  in  Illinois,  a debt 
for  the  improvement  of  state  waterways  has  been  authorized  by  con- 
stitutional amendment.  Alabama  specifically  prohibits  the  loan  of 
public  credit  to  any  banking  company.  . 

A few  states  make  exceptions  to  the  prohibition  on  the  loan  of 
state  credit,  in  favor  of  certain  educational  and  charitable  purposes. 

Of  more  importance  are  accent  amendments  or  referendum  votes 
authorizing  state  loans  for  public  works  and  enterprises.  New  York 
has  issued  $118,000,000  in  bonds  for  canals,  and  $65,000,000  for  state 
highways ; Illinois,  in  1908,  authorized  a bond  issue  of  $20,000,000 
for  waterway  improvement,  and  in  1918  a bond  issue  of  $60,000,000 
for  state  roads.  Missouri,  in  1911,  voted  for  a loan  of  $3,500,000  for 
rebuilding  the  state  capitol.  California,  in  1912,  approved  a loan  of 
$12,000,000  for  public  highways.  Oregon,  in  1912,  authorized  loans 
up  to  two  per  cent  of  the  assessed  valuation  for  roads,  and  in  1916 
loans  to  the  same  amount  for  farm  loans.  In  1914,  Wyoming  voted 
for  a bond  issue  for  highways ; and  in  1918  Pennsylvania  authorized 
a bond  issue  of  $50,000,000  for  roads.  Proposals  for  bond  issues 
for  roads  and  other  public  improvements  have  been  submitted  by  the 
Maine  and  Wisconsin  legislatures  in  1919. 

In  North  and  South  Dakota,  a number  of  constitutional  amend- 
ments have  been  adopted,  authorizing  further  important  extensions  of 
state  activity,  with  provisions  for  increased  borrowing  power.  North 
Dakota,  in  1912  and  1914,  authorized  the  establishment  of  state  grain 
elevators ; and  South  Dakota,  in  1914,  authorized  a system  of  rural 
credits.  In  1918,  both  of  these  states  adopted  amendments  providing 
for  state  hail  insurance,  and  other  public  works,  utilities  and  business 
enterprises,  such  as  mining,  cement  manufacture,  electric  power  and 
banking.  In  South  Dakota,  the  state  may  loan  its  credit  to  or  take 
stock  in  corporations  for  developing  natural  resources  up  to  one-half 
of  one  per  cent  of  the  assessed  valuation  of  property.  The  North 
Dakota  provisions  as  to  bond  issues  are  printed  in  the  appendix  to 
this  pamphlet. 

The  full  efifect  of  recent  amendments  and  authorizations  for  larger 
state  debt  has  not  been  felt ; and  state  debts  are  still  relatively  small 
compared  with  national  and  municipal  debts.  The  states  with  the 
largest  per  capita  state  debts  in  1918  are  shown  below ; with  the  debt  of 
Illinois  given  for  purposes  of  comparison. 


299 


State  Debts  of  Certain  States , 1918  a 


State. 

Gross 

Debt. 

Net  Debt. 

Total. 

Per  Capita. 

Total. 

Per  Capita. 

New  York 

$241,164,230 

$22.85 

$181,288,942 

$17.18 

Massachusetts 

134,158,289 

35.57 

87,984,094 

23.33 

California 

45,378,002 

14.83 

39,127,408 

12.73 

Maryland 

27,692,417 

20.20 

20,155,983 

14.70 

Virginia 

23,931,314 

10.84 

22,862,287 

10.36 

Ohio 

17,600,672 

3.36 

5,346,514 

1.02 

Tennessee 

17,299,492 

7.51 

16,004,691 

6.94 

Alabama 

15,950,466 

6.77 

13,277,114 

5.64 

Louisiana 

14,499,669 

7.81 

13,723,448 

7.39 

Connecticut 

12,733,351 

10.14 

8,568,763 

6.80 

North  Carolina 

10,020,306 

4.12 

9,488,150 

3.90 

Illinois 

3,996,852 

.64 

2,056,920 

.33 

a U.  S.  Census:  Financial  Statistics  of  States,  1918. 

Of  these  states,  Maryland,  Massachusetts  and  Connecticut  have 
no  important  constitutional  restrictions  on  state  debt;  Louisiana,  North 
Carolina,  Ohio  and  Virginia  prohibit  state  debt,  with  the  usual  ex- 
ceptions; and  the  other  states  require  a referendum  on  state  debt, 
with  the  usual  exceptions. 

Nearly  two-thirds  of  the  gross  state  debt  of  Massachusetts  is  for 
municipal  improvements  in  the  metropolitan  district,  for  which  the 
district  is  taxed.  This  is  properly  a municipal  debt ; and  the  state 
debt  proper  is  about  $30,000,000.  Of  the  aggregate  state  debts  in  1918, 
$296,145,795  were  for  highways,  and  $32,532,500  for  public  service 
enterprises. — most  of  the  latter  in  Massachusetts,  Georgia,  South 
Dakota  and  California. 

The  per  capita  state  debt  of  Illinois  in  1918  (33  cents)  was  lower 
than  in  all  but  nine  states ; but  this  situation  will  be  altered  with  the 
issue  of  the  waterway  and  highway  bonds  now  authorized. 


Restrictions  on  Municipal  Debts.  All  but  nine  states  impose 
some  restrictions  on  the  loan  of  municipal  credit  to  private  enterprises. 
The  nine  exceptions  are:  Maine,  Massachusetts,  Rhode  Island,  Ver- 

mont, South  Carolina,  Indiana,  Iowa,  Kansas  and  Wisconsin. 

Thirty  states  prohibit  municipalities  from  loaning  their  credit  to 
any  private  corporations : Alabama,  Arkansas,  Arizona,  California, 

Colorado,  Delaware,  Florida,  Georgia,  Idaho,  Illinois,  Kentucky, 
Louisiana,  Michigan,  Mississippi,  Missouri,  Montana,  New  Jersey, 
New  York,  New  Mexico,  North  Dakota,  Ohio,  Oklahoma,  Oregon, 
Pennsylvania,  South  Dakota,  Texas,  Utah,  Virginia,  Washington  and 
Wyoming.  Several  other  states  impose  partial  prohibitions  or  other 
restrictions  : Connecticut  prohibits  aid  for  railroads  ; Nevada  prohibits 
aid  for  any  corporation  or  association  except  railroads ; Minnesota 
places  a limit  of  five  per  cent  of  the  assessed  valuation;  Nebraska  re- 
quires a referendum  with  a maximum  limit  of  ten  per  cent  of  the 
assessed  valuation;  North  Carolina  and  Tennessee  require  a local 
referendum.  In  Maryland  local  public  notice  and  a majority  vote  of  all 
the  members  of  each  House  are  required. 


300 


per  cent, 
per  cent. 


to  7J4  per 
per  cent, 
per  cent. 


10  per  cent. 
18  per  cent. 


Twenty-eight  states  place  a limitation  on  the  total  debt  of  each 
municipal  corporation  based  in  most  cases  on  the  assessed  valuation 
of  property  for  taxation.  The  limits  established  range  from  one  and 
one-half  per  cent  in  Washington  to  eighteen  per  cent  in  Virginia,  as 
shown  in  the  following  list : 

iy2  to  5 per  cent.  Washington, 
per  cent.  Indiana  and  Wyoming, 
to  10  per  cent.  Kentucky, 
per  cent.  Colorado  and  Montana. 

Arizona,  New  Mexico  and  Utah. 

Alabama,  Illinois,  Iowa,  Missouri,  North  Dakota. 
Oklahoma,  South  Dakota,  West  Virginia  and  Wis- 
consin. 

cent.  Maine. 

Arkansas,  Georgia  and  Pennsylvania. 

South  Carolina. 

Louisiana  and  New  York.  (The  latter  based  on 
real  estate  valuation.) 

Virginia  (on  real  estate  valuation.) 

A number  of  states  also  require  a local  referendum  on  the  issue 
of  bonds  by  municipalities  or  for  making  loans  beyond  certain  limits. 
In  eight  states  (Alabama,  Arkansas,  Colorado,  Georgia,  Louisiana, 
New  Mexico,  North  Carolina  and  West  Virginia),  a referendum  vote 
is  required  for  all  loans,  with  exceptions  in  some  cases  for  refunding 
loans,  temporary  loans  or  loans  for  water  works ; and  in  three  of  these 
states  (Colorado,  Louisiana  and  New  Mexico)  the  referendum  is  to 
a vote  of  the  tax  payers.  In  six  states  (California,  Idaho,  Kentucky, 
Missouri,  Oklahoma  and  Utah)  a popular  vote  is  required  on  all  debts 
which  exceed  the  income  and  revenue  for  that  year.  Five  states  (Ari- 
zona, Indiana,  North  Dakota,  Pennsylvania,  South  Carolina)  require 
a referendum  for  loans  beyond  the  normal  debt  limit.  In  Arizona, 
the  approval  of  the  taxpayers  is  required  for  loans  over  four  per  cent 
of  the  assessed  valuation.  In  Indiana  loans  outside  the  debt  limits  may 
be  incurred  in  time  of  war,  invasion  or  other  great  public  calamity, 
on  petition  of  a majority  of  the  property  owners.  In  North  Dakota, 
loans  over  five  per  cent  of  the  assessed  valuation  may  be  made  up  to 
eight  per  cent,  when  approved  by  a two-thirds  vote  of  the  electors.  In 
Washington  debts  over  one  and  one-half  per  cent  of  the  assessed  valua- 
tion may  be  incurred  up  to  five  per  cent  when  approved  by  a three- 
fifths  vote  of  the  electors.  In  Pennsylvania,  debts  over  two  per  cent 
of  the  assessed  valuation  require  a majority  vote  of  the  electors ; and 
any  municipality,  except  Philadelphia,  may  go  beyond  the  seven  per 
cent  limit  to  ten  per  cent,  if  assented  to  by  three-fifths  of  the  electors. 
In  Philadelphia  debt  may  be  incurred  up  to  ten  per  cent  if  approved 
by  a majority  vote  of  the  electors.  In  South  Carolina  debts  for  certain 
public  utilities  may  be  incurred  over  the  eight  per  cent  limit  with  the 
approval  of  the  electors. 

In  thirteen  states,  the  constitutions  prescribe  the  maximum  period 
for  which  loans  may  be  made,  ranging  from  15  to  75  years  as  follows: 

15  years:  Colorado. 


301 


20  years : Idaho,  Illinois,  Missouri  and  Wisconsin. 

25  years : Oklahoma. 

30  years : Georgia  and  Pennsylvania. 

34  years  : West  Virginia. 

35  years : Arkansas. 

40  years : Kentucky,  Louisiana  and  California. 

50  years:  New  Mexico  and  Pennsylvania  (for  Philadelphia), 

75  years:  California  (San  Francisco,  San  Jose  and  Santa  Clara) 

These  states  and  three  others  (Ohio,  South  Carolina  and  South 
Dakota)  also  require  municipalities  in  making  loans  to  levy  a tax  t</ 
pay  interest  and  principal.  Several  states  also  provide  that  mone; 
borrowed  shall  be  applied  to  the  purpose  for  which  it  was  obtainec 
or  to  repay  the  loan,  and  to  no  other  purpose. 

Mainly  since  1900  there  has  been  a marked  tendency  to  extend  th 
borrowing  powers  of  municipalities  for  waterworks,  sewers,  lightir 
plants  and  other  public  utilities.  About  twenty  states  now  authori 
loans  for  some  or  all  of. these  purposes  beyond  the  ordinary  deb 
limit.  '■!  i-  IIJIH 

The  Virginia  constitution  of  1902  exempts  loans  for  waterworks 
and  other  revenue  undertakings  from  the  debt  limit.  Texas,  in  1904 
authorized  loans  for  roads,  and  for  irrigation,  drainage  and  navigatioi 
works.  The  Oklahoma  constitution  authorizes  municipalities  to  en 
gage  in  any  business  enterprise,  and  provides  for  loans  for  pubb 
utilities  above  the  ordinary  limit  of  five  per  cent,  with  the  approval/-, 
the  taxpayers.  South  Dakota,  in  1908,  authorized  additional  loans  foi 
street  railways  and  lighting  plants ; and  South  Carolina  and  Utah  ir 
1910  extended  the  borrowing  power  of  municipalities  for  certain  pub- 
lic improvements. 

The  New  York  constitutional  provision  of  1884  exempted  ten 
porary  revenue  bonds  and  loans  for  water  supply  from  the  debt-lim 
Another  amendment  adopted  in  1909  provides  that  the  debt  of  N 
York  City  for  property,  railroads,  docks  and  other  improvements  s' 
not  be  included  if  the  city’s  net  income  from  such  property  or  imprc 
ments  is  more  that  the  interest  payments  on  debts  incurred  for  s. 
purposes.  # ^ 

The  Michigan  constitution  of  1908  authorizes  a city  or  village  a. 
quiring  a public  utility  “to  issue  mortgage  bonds  therefor  beyond  A 
general  limit  of  bonded  indebtedness  prescribed  by  law;  provided  th 
such  mortgage  bonds  issued  beyond  the  general  limit  of  bonded  i 
debtedness  prescribed  by  law  shall  not. impose  any  liability  upon  su 
municipality,  but  shall  be  secured  only  upon  the  property  and  rev 
nues  of  such  public  utility  including  a franchise  stating  the  terms  V-P 
which  in  case  of  foreclosure,  the  purchaser  may  operate  the  same 
which  franchise  shall  in  no  case  extend  for  a longer  period  thai 
twenty  years  from  the  date  of  the  sale  of  such  utility  and  franchise 

on  foreclosure.”  ,r 

Ohio,  in  1912,  adopted  an  identical  provision  for  public  util i 
loans,  and  a similar  provision  for  loans  secured  by  mortgage  of  pro 
erty  acquired  bv  excess  condemnation. 

Pennsylvania,  in  1913,  adopted  a constitutional  amendment  » 
bining  the  New  York  and  Michigan  provisions,  excluding  frorr 


municipal  debt  obligations  of  any  county  or  municipality,  other  than 
diiladelphia,  for  waterworks,  subways,  or  street  railways,  if  the  net 
revenue  is  sufficient  to  pay  interest  and  sinking  fund  charges,  or  if 
the  obligations  are  secured  by  liens  upon  the  respective  properties  and 
mpose  no  municipal  liability.  Another  amendment  relating  to  the  bor- 
owing  power  of  Philadelphia  was  adopted  in  1918,  which  excludes 
rom  the  debt  limit,  the  debt  for  public  improvements  which  yield  an 
innual  current  net  revenue. 

In  Wisconsin,  an  amendment  has  been  passed  by  one  legislature 
n 1919,  authorizing  additional  loans  for  public  utilities. 

Constitutional  restrictions  on  local  debt  have  been  evaded  in  other 
tates,  as  in  Illinois,  by  the  creation  of  a series  of  overlapping  munici- 
al  authorities  covering  much  the  same  territory,  each  of  which  may 
orrow  and  levy  taxes  up  to  the  limits  established.  To  meet  this 
tuation,  two  states  have  adopted  provisions  to  limit  the  aggregate 
bt  of  such  overlapping  authorities. 

In  Nebraska  no  county  with  all  its  subdivisions  may  grant  aid 
to  railroads  in  excess  of  ten  per  cent  of  the  assessed  valuation,  except 
that  by  a two-thirds  vote  of  the  electors  a further  debt  of  five  per  cent 
nay  be  incurred.  The  South  Carolina  constitution,  which  places  an 
ight  per  cent  limit  on  the  debt  of  each  municipality,  further  provides 
hat  where  there  are  two  or  more  municipal  corporations  covering  the 
ime  territory,’  “the  aggregate  indebtedness  over  and  upon  any  terri- 
)r}/^of  this  State  shall  not  exceed  fifteen  per  cent  of  all  taxable  prop- 
rty  in  such  territory.” 

Thirteen  state  constitutions  contain  provisions  directing  the  legis- 
ature  to  restrict  the  borrowing  power  of  cities  and  other  municipalities. 
About  half  of  these  are  states  with  other  specific  constitutional  re- 
rictions — Arkansas,  New  York,  North  Dakota,  South  Carolina,  South 
akota,  Wisconsin  and  Wyoming.  In  Kansas,  Michigan,  Mississippi, 
ada,  North  Carolina,  Ohio  and  Oregon,  limitation  of  municipal 
t is  left  to  legislative  control,  as  it  is  also  in  Massachusetts  and 
ir  states  with  no  constitutional  provisions.  Massachusetts  has 
ently  enacted  important  legislation  regulating  borrowing  in  that 

k. 

The  following  table  shows  the  aggregate  municipal  debt  in  the 
nited  States  and  in  the  states  with  the  largest  amount  of  such  debt 
1912. 


Assessed 

Per 

Municipal  Debt. 

Valuation. 

Per  Cent. 

Capita. 

’eel  States, 
ew  York 
ennsylvania. 

hio 

lassachusetts 
ew  Jersey.  . 

linois 

lifornia. . . . 


$3,475,954,353 

1,046.226,813 

245,979.219 

234,525.134 

187,578,004 

169,527,120 

137,207,747 

136,528,824 


$69,452,936,104 

11,131.778,917 

5,068,802,988 

6,481,059,158 

4,503,078,625 

2,490,490,534 

7,031,019,696s 

2,921,277,451 


5 

10 

5 

3.6 

4 

6.5 


$ 35.81 
107.71 
30.34 

47.23 
52.86 
61.66 

23.24 
51.18 


Assessors’ 


‘Full  Value”. 

It  will  be  noted  that  the  aggregate  of  municipal  debts  in  Illinois 
less  per  capita  than  in  any  of  the  other  states  or  in  the  United 


States  as  a whole.  The  percentage  of  debt  to  assessed  valuation  was. 
also  much  lower  than  in  the  United  States  as  a whole  or  in  any  of  the 
other  states.  The  percentage  of  municipal  debts  to  valuation  was  high- 
est (ten  per  cent)  in  New  York. 

An  analysis  of  municipal  debts  in  the  United  States  from  1880  - 
to  1912  shows  that  a much  larger  part  of  the  recent  debt  than  the 
earlier  debt  is  for  productive  undertakings,  and  a smaller  proportion  is 
for  other  purposes,  such  as  war  loans,  railroad  aid  or  refunding  earlier 
loans.10 


Conclusions.  The  only  question  which  seems  likely  to  arise 
in  connection  with  the  provisions  in  the  Illinois  constitution  relating 
to  state  debt  is  as  to  the  desirability  of  increasing  the  amount  of  debt 
authorized  to  meet  casual  deficits,  so  as  to  correspond  with  the  present  (■» 
scale  of  state  financial  transactions. 

The  general  prevalence  of  limitations  on  municipal  debt  indicates  1 
the  recognized  need  for  some  method  of  restricting  the  borrowing 
power  of  local  governments.  Criticism  is  made,  however,  of  the 
mechanical  and  rigid  character  of  the  constitutional  limitations  in  the 
United  States.  The  method  of  imposing  an  arbitrary  percentage  limit 
on  valuation  does  not  take  into  account  the  different  purposes  for 
which  debt  may  be  incurred,  nor  the  varying  needs  of  different  classes 
of  local  authorities  or  different  communities.  The* wide  variations  in 
the  percentage  limits  show  the  absence  of  any  consensuk  of  opinion 
as  to  a satisfactory  limit  of  this  kind.  In  operation,  the  effect  of  these 
limitations  is  frequently  altered  by  the  extent  of  undervaluation  in  the 
assessment  of  property  (which  may  vary  from  time  to  time,  as  it  has 
in  Illinois),  and  by  the  device  of  creating  overlapping  districts,  each 
of  which  may  borrow  up  to  the  constitutional  limit.  The  recent  pro-B 
visions  exempting  loans  for  revenue  producing  public  utilities  I 
(adopted  in  states  with  relatively  high  limits),  place  such  debts  on  a J 
different  basis  from  those  to  be  paid  from  taxation,  and  reflect  a mqrel 
liberal  policy  toward  the  extension  of  municipal  functions.  I * 

While  some  constitutional  provisions  on  municipal  debt  are  ad-  _ 
visable,  specific  limitations  on  such  debts  in  the  constitution  do  not 
seem  to  be  satisfactory.  It  does  not  appear  that  in  states  such  as 
Michigan  and  Ohio,  where  the  limitation  on  the  amount  of  debt  is 
left  to  legislative  action,  debt  conditions  are  any  worse  than  in  states 
where  the  limits  are  fixed  in  the  constitution.  By  statute  provision 
could  be  made  for  a system  of  administrative  control,  based  on  a study 
of  local  conditions,  similar  to  that  now  exercised  in  the  case  of  securi- 
ties for  public  utility  corporations,  and  to  that  used  in  Great  Britain 
for  the  loans  of  municipal  authorities,  a plan  which  has  also  been 
adopted  in  Massachusetts  for  loans  by  the  towns  in  that  state. 


10  F.  E.  Clark:  The  Purposes  of  the  Indebtedness  of  American  Cities,  1880-1912. 


304 


APPENDIX  NO.  1 


REFERENCES 


(A)  Taxation. 

Ci\^c  Federation  of  Chicago: 

Apace  with  Progress.  The  case  for  the  pending  amendment  to 
the  Illinois  Constitution.  Voted  upon  November  7,  1916. 
Taxation  and  Public  Finance.  Constitutional  Convention  Series, 
Study  No.  2,  (1919). 

Cooley,  T.  M.  Law  of  Taxation  (3rd  ed.  1908)  Vol.  I,  pp.  274-342. 
Fairlie,  John  A.  Report  on  the  Taxation  and  Revenue  System  of 
Illinois.  Prepared  for  the  Tax  Commission  (1910). 

Report  on  Revenue  and  Finance  Administration.  Efficiency  and 
Economy  Committee  (1914). 

Haig,  R.  M.  History  of  the  General  Property  Tax  in  Illinois,  (Uni- 
versity of  Illinois  Studies  in  the  Social  Sciences). 

Judson,  F.  N.  A Treatise  on  the  Power  of  Taxation  (2nd  ed.  1917) 
pp.  769-1041. 

Massachusetts  Constitutional  Convention  Bulletin  No.  20 : Classifi- 

cation of  Property  for  taxation  (1917). 

E National  Tax  Association,  Proceedings  : 

I.  (1907)  Loeb,  I.  Constitutional  Limitations  affecting  taxation; 
II.  (1908)  Campbell,  R.  A.  Plistory  of  Constitutional  provisions 
relating  to  taxation ; 

l>  X.  (1916)  Bullock,  C.  J.  The  state  income  tax,  versus  the  Classi- 
fied Property  Tax. 

Report  of  Committee  on  a Model  System  of  National  and  State 
taxation. 

Special  Tax  Commission  (Illinois).  Report  (1911). 

United  States  Bureau  of  the  Census.  Taxation  and  revenue  systems 
of  State  and  Local  Governments.  A Digest  of  constitutional  and 
statutory  provisions  relating  to  taxation  in  the  different  states  in 
1912.  (1914). 


(B)  Appropriations  and  budget  methods. 

Buck,  A.  E.  The  present  status  of  the  executive  budget  in  the  State 
k governments.  National  Municipal  Review,  VIII,  422  (August, 
1919).  A carfeul  analysis  of  the  executive  budget  system. 

r*“ r“r:;r 


305 


Affairs,  Madison,  1912.  A careful  discussion  of  the  budget  in 
this  country  and  abroad,  with  an  analysis  of  the  constitutional 
provisions  of  all  the  states. 

Massachusetts  Constitutional  Convention.  Bulletin  No.  2.  .State 
budget  systems  in  the  United  States.  Boston,  1917.  A good  brief 
analysis  of  budget  provisions  in  1917. 

Willoughby,  W.  F.  Movement  for  budgetary  reform  in  the  states. 
New  York,  Appleton,  1918.  Summaries  the  experience  of  the 
states. 


(C)  Debt  Limitations. 

Clark,  Fred  E.  The  purposes  of  the  Indebtedness  of  American  cities, 
1880-1912.  Municipal  Research,  No.  75,  July,  1916. 

Massachusetts  Constitutional  Convention  Bulletins : 

No.  14.  Constitutional  Restrictions  on  Municipal  Indebtedness. 

No.  15.  Constitutional  Restrictions  on  State  Debt. 

No.  21.  Methods  of  Borrowing,  Sinking  Funds  v.  Serial  Bonds. 

Secrist,  Horace.  An  Economic  Analysis  of  the  Constitutional  Re- 
strictions upon  Public  Indebtedness  in  the  United  States.  Bulletin 
of  the  University  of  Wisconsin,  (1914). 

United'  States  Bureau  of  the  Census : Financial  Statistics  of  States, 

(1918). 


306 


APPENDIX  NO.  2.  ILLINOIS  CONSTITUTION, 
ARTICLE  IX 


Section  1.  The  general  assembly  shall  provide  such  revenue  as 
may  be  needful  by  levying  a tax,  by  valuation,  so  that  every  person 
and  corporation  shall  pay  a tax  in  proportion  to  the  value  of  his, 
her  or  its  property — such  value  to  be  ascertained  by  some 
person  or  persons  to  be  elected  or  appointed  in  such  manner 
as  the  general  assembly  shall  direct,  and  not  otherwise;  but 
the  general  assembly  shall  have  power  to  tax  peddlers,  auctioneers, 
brokers,  hawkers,  merchants,  commission  merchants,  showmen,  jug- 
glers, inn-keepers,  grocery-keepers,  liquor  dealers,  toll-bridges,  ferries, 
insurance,  telegraph  and  express  interests  or  business,  venders  of 
patents  and  persons  or  corporations  owning  or  using  franchises  and 
privileges,  in  such  manner  as  it  shall  from  time  to  time  direct  by 
general  law,  uniform  as  to  the  class  upon  which  it  operates. 

Sec.  2.  The  specification  of  the  objects  and  subjects  of  taxation 
shall  not  deprive  the  general  assembly  of  the  power  to  require  other 
subjects  or  objects  to  be  taxed,  in  such  manner  as  may  be  consistent 
with  the  principles  of  taxation  fixed  in  this  constitution. 

Sec.  3.  The  property  of  the  state,  counties,  and  other  municipal 
corporations,  both  real  and  personal,  and  such  other  property  as  may 
be  used  exclusively  for  agricultural  and  horticultural  societies,  for 
school,  religious,  cemetery  and  charitable  purposes,  may  be  exempted 
from  taxation;  but  such  exemption  shall  be  only  by  general  law.  In 
the  assessment  of  real  estate  incumbered  by  public  easement,  any  de- 
preciation occasioned  by  such  easement  may  be  deducted  in  the  valua- 
tion of  such  property. 

Sec.  4.  The  general  assembly  shall  provide,  in  all  cases  where 
it  may  be  necessary  to  sell  real  estate  for  the  non-payment  of  taxes  or 
special  assessments  for  State,  county,  municipal  or  other  purposes, 
that  a return  of  such  unpaid  taxes  or  assessments  shall  be  made  to 
some  general  officer  of  the  county  having  authority  to  receive  state  and 
county  taxes;  and  there  shall  be  no  sale  of  said  property  for  any  of 
said  taxes  or  assessments  but  by  said  officer,  upon  the  order  of  judg- 
ment of  some  court  of  record. 

Sec.  5.  The  right  of  redemption  from  all  sales  of  real  estate 
for  the  non-payment  of  taxes  or  special  assessments  of  any  character 
whatever,  shall  exist  in  favor  of  owners  and  persons  interested  in  such 
real  estate  for  a period  of  not  less  than  two  years  from  such  sales 
thereof.  And  the  general  assembly  shall  provide,  by  law,  for  reason- 


307 


able  notice  to  be  given  to  the  owners  or  parties  interested,  by  publi- 
cation or  otherwise,  of  the  fact  of  the  sale  of  the  property  for  such 
taxes  or  assessments,  and  when  the  time  of  redemption  shall  expire : 
Provided,  that  occupants  shall  in  all  cases  be  served  with  personal 
notice  before  the  time  of  redemption  expires. 

Sec.  G.  The  general  assembly  shall  have  no  power  to  release  or 
discharge  any  county,  city,  township,  town  or  district  whatever,  or 
the  inhabitants  thereof,  or  the  property  therein,  from  their  or  its  pro- 
portionate share  of  taxes  to  be  levied  for  State  purposes,  nor  shall 
commutation  for  such  taxes  be  authorized  in  any  form  whatsoever. 

Sec.  7.  All  taxes  levied  for  state  purposes  shall  be  paid  into  the 
state  treasury. 

Sec.  8.  County  authorities  shall  never  assess  taxes  the  aggregate 
of  which  shall  exceed  seventy-five  cents  per  one  hundred  dollars  valua- 
tion except  for  the  payment  of  indebtedness  existing  at  the  adoption 
of  this  constitution,  unless  authorized  by  a vote  of  the  people  of  the 
county. 

Sec.  9.  The  general  assembly  may  vest  the  corporate  authorities 
of  cities,  towns. and  villages  with  power  to  make  local  improvements 
by  special  assessment  or  by  special  taxation  of  contiguous  property 
or  otherwise.  For  all  other  corporate  purposes,  all  municipal  corpora- 
tions may  be  vested  with  authority  to  assess  and  collect  taxes ; but  such 
taxes  shall  be  uniform  in  respect  to  persons  and  property  within  the 
jurisdiction  of  the  body  imposing  the  same. 

Sec.  10.  The  general  assembly  shall  not  impose  taxes  upon 
municipal  corporations,  or  the  inhabitants  or  property  thereof,  for 
corporate  purposes,  but  shall  require  that  all  the  taxable  property 
within  the  limits  of  municipal  corporations  shall  be  taxed  for  the  pay- 
ment of  debts  contracted  under  authority  of  law,  such  taxes  to  be 
uniform  in  respect  to  persons  and  property  within  the  jurisdiction 
of  the  body  imposing  the  same.  Private  property  shall  not  be  liable 
to  be  taken  or  sold  for  the  payment  of  the  corporate  debts  of  a munici- 
pal corporation. 

Sec.  11.  No  person  who  is  in  default,  as  collector  or  custodian 
of  money  or  property  belonging  to  a municipal  corporation,  shall  be 
eligible  to  any  office  in  or  under  such  corporation.  The  fees,  salary 
or  compensation  of  no  municipal  officer  who  is  elected  or  appointed  for 
a definite  term  of  office  shall  be  increased  or  diminished  during  such 
term. 

Sec.  12.  No  county,  city,  township,  school  district  or  other 
municipal  corporation  shall  be  allowed  to  become  indebted  in  any 
manner  or  for  any  purpose  to  an  amount,  including  existing  indebted- 
ness, in  the  aggregate  exceeding  five  per  centum  on  the  value  of  the 
taxable  property  therein,  to  be  ascertained  by  the  last  assessment  for 
state  and  county  taxes  previous  to  the  incurring  of  such  indebtedness. 
Any  county,  city,  school  district  or  other  municipal  corporation  incur- 
ring any  indebtedness  as  aforesaid,  shall  before  or  at  the  time  of  doing 
so,  provide  for  the  collection  of  a direct  annual  tax  sufficient  to  pay 
the  interest  of  such  debt  as  it  falls  due,  and  also  to  pay  and  discharge 
the  principal  thereof  within  twenty  years  from  the  time  of  contracting 


308 


the  same.  This  section  shall  not  be  construed  to  prevent  any  county, 
city,  township,  school  district  or  other  municipal  corporation,  from 
issuing  their  bonds  in  compliance  with  any  vote  of  the  people  which 
may  have  been  had  prior  to  the  adoption  of  this  constitution  in  pur- 
suance of  any  law  providing  therefor. 

Sec.  13.  The  corporate  authorities  of  the  city  of  Chicago  are 
hereby  authorized  to  issue  interest  bearing  bonds  of  said  city  to  an 
amount  not  exceeding  five  million  dollars,  at  a rate  of  interest  not  to 
exceed  five  per  centum  per  annum,  the  principal  payable  within  thirty 
years  from  the  date  of  their  issue,  and  the  proceeds  thereof  shall  be 
paid  to  the  treasurer  of  the  World’s  Columbian  Exposition,  and  used 
and  disbursed  by  him  under  the  direction  and  control  of  the  directors, 
in  aid  of  the  World’s  Columbian  Exposition,  to  be  held  in  the  city  of 
Chicago,  in  pursuance  of  an  Act  of  Congress  of  the  United  States. 

Provided,  that  if  at  an  election  for  the  adoption  of  this  amend- 
ment to  the  constitution  a majority  of  the  votes  cast  within  the  limits 
of  the  city  of  Chicago  shall  be  against  its  adoption,  then  no  bonds  shall 
be  issued  under  this  amendment. 

And  said  corporate  authorities  shall  be  repaid  as  large  a propor- 
tionate amount  of  the  aid  given  by  them  as  is  repaid  to  the  stock- 
holders on  the  sums  subscribed  and  paid  by  them  and  the  money 
so  received  shall  be  used  in  the  redemption  of  the  bonds  issued  r 
aforesaid,  provided  that  said  authorities  may  take  in  whole  or  in  part 
of  the  sum  coming  to  them  any  permanent  improvements  placed  on 
land  held  or  controlled  by  them. 

And,  provided,  further,  that  no  such  indebtedness  so  created  shall 
in  any  part  thereof  be  paid  by  the  state,  or  from  any  state:  revenue, 
tax  or  fund,  but  the  same  shall  be  paid  by  the  said  city  of  Chicago 
alone.  (Section  13  added  by  an  amendment  of  1890). 


309 


APPENDIX  NO.  3.  CONSTITUTIONAL  PROVISIONS  ON 

TAXATION 


(A)  New  York  Constitution. 

Article  III,  Section  18.  The  Legislature  shall  not  pass  a private 
or  local  bill  in  any  of  the  following  cases : 

Granting  to  any  person,  association,  firm  or  corporation, 
an  exemption  from  taxation  on  real  or  personal  property. 

Sec.  24.  Every  law  whi.ch  imposes,  continues  or  revives  a tax 
shall  distinctly  state  the  tax  and  the  object  to  which  it  is  to  be  applied 
and  it  shall  not  be  sufficient  to  refer  to  any  other  law  to  fix  such  tax 
or  object.  H 

Sec.  25.  On  the  final  passage,  in  either  house  of  the  legislature, 
of  any  act  which  imposes,  continues  or  revives  a tax,  or  creates  a debt 
or  charge,  or  makes,  continues  or  revives  any  appropriation  of  public 
or  trust  money  or  property,  or  releases,  discharges  or  commutes  any 
claim  or  demand  of  the  state,  the  question  shall  be  taken  by  yeas  and 
nays,  which  shall  be  duly  entered  upon  the  journals,  and  three-fifths 
of  all  the  members  elected  to  either  house  shall,  in  all  such  cases,  be 
necessary  to  constitute  a quorum  therein. 


(B)  Pennsylvania  Constitution. 

Article  IX,  Section  1.  Taxes  to  be  Uniform.  Exemptions.  All 
taxes  shall  be  uniform,  upon  the  same  class  of  subjects,  within  the 
territorial  limits  of  the  authority  levying  the  tax,  and  shall  be  levied 
and  collected  under  general  laws ; but  the  general  assembly  may,  by 
general  laws,  exempt  from  taxation  public  property  used  for  public 
purposes,  actual  places  of  religious  worship,  places  of  burial  not  used 
or  held  for  private  or  corporate  profit,  and  institutions  of  purely  public 
charity. 

Sec.  2.  Exemption  from  Taxation  Limited.  All  laws  exempting 
property  from  taxation,  other  than  the  property  above  enumerated, 
shall  be  void. 

Sec.  3.  Taxation  of  Corporations.  The  power  to  tax  corpora- 
tions and  corporate  property  shall  not  be  surrendered  or  suspended 
by  any  contract  or  grant  to  which  the  state  shall  be  a party. 


(C)  Kentucky  Constitution. 

Section  171.  The  general  assembly  shall  provide  by  law  an  annual 
tax,  which,  with  other  resources,  shall  be  sufficient  to  defray  the  esti- 


310 


mated  expenses  of  the  Commonwealth  for  each  fiscal  year.  Taxes 
shall  be  levied  and  collected  for  public  purposes  only  and  shall  be 
uniform  upon  all  property  of  the  same  class  subject  to  taxation  within 
the  territorial  limits  of  the  authority  levying  the  tax;  and  all  taxes 
shall  be  levied  and  collected  by  general  laws. 

The  general  assembly  shall  have  power  to  divide  property  into 
classes  and  to  determine  what  class  or  classes  of  property  shall  be 
subject  to  local  taxation.  Bonds  of  the  state  and  of  counties,  munici- 
palities, taxing  and  school  districts  shall  not  be  subject  to  taxation. 

Any  law  passed  or  enacted  by  the  general  assembly  pursuant  to  the 
provisions  of  or  under  this  amendment,  or  amended  section  of  the 
constitution,  classifying  property  and  providing  a lower  rate  of  taxa- 
tion on  personal  property,  tangible  or  intangible,  than  upon  real  estate, 
shall  be  subject  to  the  referendum  power  of  the  people,  which  is  hereby 
declared  to  exist  to  apply  only  to  this  section,  or  amended  section.  The 
referendum  may  be  demanded  by  the  people  against  one  or  more  items, 
sections,  or  parts  of  any  act  enacted  pursuant  to  or  under  the  power 
granted  by  this  amendment,  or  amended  section.  The  referendum 
petition  shall  be  filed  with  the  Secretary  of  State  not  more  than  four 
months  after  the  final  adjournment  of  the  Legislative  Assembly  which 
passed  the  bill  on  which  the  referendum  is  demanded.  The  veto  power 
of  the  Governor  shall  not  extend  to  measures  referred  to  the  people 
under  this  section.  All  elections  on  measures  referred  to  the  people 
under  this  act  shall  be  at  the  regular  general  elections  except  when 
the  legislative  assembly  shall  order  a special  election.  Any  measure 
referred  to  the  people  shall  take  effect  and  become  a law  when  ap- 
proved by  the  majority  of  the  votes  cast  thereon,  and  not  otherwise. 
The  whole  number  of  votes  cast  for  the  candidate  for  Governor  at  the 
regular  election,  last  preceding  the  filing  of  any  petition,  shall  be  the 
basis  upon  which  the  legal  voters  necessary  to  sign  such  petition  shall 
be  counted.  The  power  of  the  referendum  shall  be  ordered  by  the 
Legislative  Assembly  at  any  time  any  acts  or  bills  are  enacted,  pur- 
suant to  the  power  granted  under  this  section  or  amended  section, 
prior  to  the  year  of  one  thousand  nine  hundred  and  seventeen.  After 
that  time  the  power  of  the  referendum  may  be  ordered  either  by  the 
petition  signed  by  five  per  cent  of  the  legal  voters  or  by  the  Legislative 
Assembly  at  the  time  said  acts  or  bills  are  enacted.  The  General  As- 
sembly enacting  the  bill  shall  provide  a way  by  which  the  act  shall 
be  submitted  to  the  people.  The  filing  of  a referendum  petition  against 
one  or  more  items,  sections  or  parts  of  an  act,  shall  not  delay  the  re- 
mainder of  that  act  from  becoming  operative.  (As  amended  1915). 

Sec.  174.  All  property,  whether  owned  by  natural  persons  or 
corporations,  shall  be  taxed  in  proportion  to  its  value,  unless  exempted 
by  this  constitution ; and  all  corporate  property  shall  pay  the  same  rate 
of  taxation  paid  by  individual  property.  Nothing  in  this  constitution 
shall  be  construed  to  prevent  the  general  assembly  from  providing  for 
taxation  based  on  income,  licenses  or  franchises. 


311 


(D)  Maryland  Constitution. 

Declaration  of  Rights,  Section  15.  That  the  levying  of  taxes  by 
the  poll  is  grievous  and  oppressive  and  ought  to  be  prohibited ; that 
paupers  ought  not  to  be  assessed  for  the  support  of  the  government; 
that  the  general  assembly  shall  by  uniform  rules  provide  for  separate 
assessment  of  land  and  classification  and  sub-classifications  of  improve- 
ments on  land  and  personal  property,  as  it  may  deem  proper;  and  all 
taxes  thereafter  provided  to  be  levied  by  the  state  for  the  support 
of  the  general  State  Government,  and  by  the  counties  and  by  the  City 
of  Baltimore  for  their  respective  purposes,  shall  be  uniform  as  to  land 
within  the  taxing  district,  and  uniform  within  the  class  or  sub-class  of 
improvements  on  land  and  personal  property  which  the  respective  tax- 
ing powers  may  have  directed  to  be  subjected  to  the  tax  levy ; yet  fines, 
duties  or  taxes  may  properly  and  justly  be  imposed,  or  laid  with  a po- 
litical view  for  the  good  government  and  benefit  of  the  community. 
(As  amended  1915). 


(E)  South  Dakota  Constitution. 

Article  XI,  Sec.  2.  To  the  end  that  the  burden  of  taxation  may 
be  equitable  upon  all  property,  and  in  order  that  no  property  which  is 
made  subject  to  taxation  shall  escape,  the  legislature  is  empowered  to 
divide  all  property  including  moneys  and  credits  as  well  as  physical 
property  into  classes  and  to  determine  what  class  or  classes  of  property 
shall  be  subject  to  taxation  and  what  property,  if  any,  shall  not  be  sub- 
ject to  taxation.  Taxes  shall  be  uniform  on  all  property  of  the  same 
class,  and  shall  be  levied  and  collected  for  public  purposes  only.  Taxes 
may  be  imposed  upon  any  and  all  property  including  privileges,  fran- 
chises and  licenses  to  do  business  in  the  state.  Gross  earnings  and  net 
incomes  may  be  considered  in  taxing  any  and  all  property,  and  the 
valuation 'of  property  for  taxation  purposes  shall  never  exceed  the 
actual  value  thereof.  The  legislature  is  empowered  to  impose  taxes 
upon  incomes  and  occupations,  and  taxes  upon  incomes  may  be  grad- 
uated and  progressive  and  reasonable  exemptions  may  be  provided. 
(As  amended  1918). 


(F)  Wisconsin  Constitution. 

Article  VIII,  Sec.  1.  Taxation  uniform;  income  taxes.  The  rule 
of  taxation  shall  be  uniform,  and  taxes  shall  be  levied  upon  such 
property  as  the  legislature  shall  prescribe.  Taxes  may  also  be  imposed 
on  incomes,  privileges  and  occupations,  which  taxes  may  be  graduated 
and  progressive,  and  reasonable  exemptions  may  be  provided.  (As 
amended  1908). 


312 


(G)  Minnesota  Constitution. 

Article  IV,  Sec.  32a.  Any  law  providing  for  the  repeal  or  amend- 
ment of  any  law  or  laws  heretofore  or  hereafter  enacted,  which  pro- 
vides that  any  railroad  company  now  existing  in  this  state  or  oper- 
ating its  road  therein,  or  which  may  be  hereafter  organized,  shall,  in 
lieu  of  all  other  taxes  and  assessments  upon  their  real  estate,  roads, 
rolling  stock,  and  other  personal  property,  at  and  during  the  time  and 
periods  therein  specified,  pay  into  the  treasury  of  this  state  a certain 
percentage  therein  mentioned  of  the  gross  earnings  of  such  railroad 
companies  now  existing  or  hereafter  organized,  shall,  before  the  same 
shall  take  effect  or  be  in  force,  be  submitted  to  a vote  of  the  people  of 
the  state,  and  be  adopted  and  ratified  by  a majority  of  the  electors  of 
the  state  voting  at  the  election  at  which  the  same  shall  be  submitted  to 
them.  (As  amended  1871). 

Article  IX,  Sec.  1.  The  power  of  taxation  shall  never  be  sur- 
rendered, suspended  or  contracted  away.  Taxes  shall  be  uniform  upon 
the  same  class  of  subjects,  and  shall  be  levied  and  collected  for  pub- 
lic purposes,  but  public  burying  grounds,  public  school  houses, 
public  hospitals,  academies,  colleges,  universities,  and  all  seminaries 
of  learning,  all  churches,  church  property,  and  houses  of  worship, 
institutions  of  purely  public  charity,  and  public  property  used 
exclusively  for  any  public  purpose,  shall  be  exempt'  from  taxation, 
and  there  may  be  exempted  from  taxation  personal  property  not 
exceeding  in  value  $200,  for  each  household,  individual  or  head  of 
a family,  as  the  legislature  may  determine : Provided,  that  the 
legislature  may  authorize  municipal  corporations  to  levy  and  col- 
lect assessments  for  local  improvements  upon  property  benefited 
thereby  without  regard  to  a cash  valuation,  and,  provided  further, 
that  nothing  herein  contained  shall  be  construed  to  affect,  modify 
or  repeal  any  existing  law  providing  for  the  taxation  of  the  gross 
earnings  of  railroads.  (As  amended  1906). 


(H)  Ohio  Constitution.1 

Article  XII,  Section  2.  Laws  shall  be  passed,  taxing  by  a 
uniform  rule,  all  moneys,  credits,  investments  in  bonds,  stocks, 
joint  stock  companies,  or  otherwise,  and  also  all  real  and  personal 
property  according  to  its  true  value  in  money,  excepting  all  bonds 
outstanding  on  the  first  day  of  January,  1913,  of  the  state  of  Ohio 

1 A proposed  amendment  containing  the  following  language  was  voted  on  in 
November,  1918  : 

“The  general  assembly  shall  provide  for  the  raising  of  revenues  for  all  state 
and  local  purposes  in  such  manner  as  it  shall  deem  proper.  The  subjects  of  taxa- 
tion for  state  and  local  purposes  shall  be  classified,  and  the  rate  of  taxation  shall 
be  uniform  on  all  subjects  of  the  same  class,  and  shall  be  just  to  the  subject 
taxed.” 

It  was  approved  by  voters  with  a majority  of  over  30.000,  but  at  the  same 
time  another  amendment  to  the  same  section,  to  prevent  double  taxation  of  mort- 
gages (which  repeated  the  former  uniform  tax  provision)  was  adopted  by  a larger 
majority  ; and  the  Supreme  Court  held  that  there  was  a conflict  between  the  amend- 
ments and  that  the  classification  amendment  was  not  carried.  The  above -text  is 
that  as  amended  by  the  amendment  of  1918  to  prevent  double  taxation  of  mort- 
gages. 


313 


or  of  any  city,  village,  hamlet,  county,  or  township  in  this  state 
or  which  have  been  issued  in  behalf  of  the  public  schools  in  Ohio 
and  by  the  means  of  instruction  in  connection  therewith,  which 
bonds  outstanding  on  the  first  day  of  January,  1913,  shall  be  ex- 
empt from  taxation,  but  burying  grounds,  public  school  houses, 
houses  used  exclusively  for  public  worship ; institutions  used  ex- 
clusively for  charitable  purposes,  public  property  used  exclusively 
for  any  public  purpose,  and  personal  property,  to  an  amount  not 
exceeding  in  value  five  hundred  dollars,  for  each  individual,  may, 
by  general  laws,  be  exempted  from  taxation ; and  laws  may  be 
passed  to  provide  against  the  double  taxation  that  results  from  the 
taxation  of  both  the  real  estate  and  the  mortgage  or  the  debt  se- 
cured thereby,  or  other  lien  upon  it,  but  all  such  laws  shall  be  sub- 
ject to  alteration  or  repeal;  and 'the  value  of  all  property,  so  ex- 
empted, shall,  from  time  to  time,  be  ascertained  and  published  as 
may  be  directed  by  law.  (As  amended  1918). 


(I)  California  Constitution. 

Article  XIII,  Sec.  1.  All  property  in  the  state  except  as  other- 
wise in  this  constitution  provided,  not  exempt  under  the  laws  of 
the  United  States,  shall  be  taxed  in  proportion  to  its  value,  to  be 
ascertained  as  provided  by  law,  or  as  hereinafter  provided.  The 
word  “property”,  as  used  in  this  article  and  section,  is  hereby  de- 
clared to  include  moneys,  credits,  bonds,  stocks,  dues,  franchises, 
and  all  other  matters  and  things,  real,  personal,  and  mixed,  capable 
of  private  ownership ; provided,  that  a mortgage,  deed  of  trust,  con- 
tract, or  other  obligation  by  which  a debt  is  secured  when  land  is 
pledged  as  security  for  the  payment  thereof,  together  with  the 
money  represented  by  such  debt,  shall  not  be  considered  property 
subject  to  taxation  . . . (As  amended  1910). 

Sec.  14.  Taxes  levied,  assessed  and  collected  as  hereinafter 
provided  upon  railroads,  including  street  railways,  whether  oper- 
ated in  one  or  more  counties;  sleeping  car,  dining  car,  drawing 
room  car  and  palace  car  companies,  refrigerator,  oil,  stock,  fruit, 
and  other  car-loaning  and  other  car  companies  operating  upon  rail- 
roads in  this  State ; companies  doing  express  business  on  any  rail- 
road, steamboat,  vessel  or  stage  line  in  this  State ; telegraph  com- 
panies ; telephone  companies ; companies  engaged  in  the  transmis- 
sion or  sale  of  gas  or  electricity ; insurance  companies ; banks,  bank- 
ing associations,  savings  and  loan  societies,  and  trust  companies ; 
and  taxes  upon  all  franchises  of  every  kind  and  nature,  shall  be 
entirely  and  exclusively  for  State  purposes,  and  shall  be  levied,  as- 
sessed and  collected  in  the  manner  hereinafter  provided.  The  word 
“companies”  as  used  in  this  section  shall  include  persons,  partner- 
ships, joint  stock  associations,  companies,  and  corporations  . . . 

(e)  Out  of  the  revenues  from  the  taxes  provided  for  in  this 
section,  together  with  all  other  state  revenues,  there  shall  be  first 


314 


set  apart  the  moneys  to  be  applied  by  the  State  to  the  support  of 
the  public  school  system  and  the  State  University.  In  the  event 
that  the  above  named  revenues  are  at  any  time  deemed  insufficient 
to  meet  the  annual  expenditures  of  the  State,  including  the  above 
named  expenditures  for  educational  purposes,  there  may  be  levied,  in 
the  manner  to  be  provided  by  law,  a tax,  for  State  purposes,  on  all 
the  property  in  the  State  including  the  classes  of  property  enumer- 
ated in  this  section,  sufficient  to  meet  the  deficiency.  All  prop- 
erty enumerated  in  subdivisions  a,  b,  and  d of  this  section  shall 
be  subject  to  taxation,  in  the  manner  provided  by  law,  to  pay  the 
principal  and  interest  of  any  bonded  indebtedness  created  and  out- 
standing by  any  city,  city  and  county,  county,  town,  township  or 
district,  before  the  adoption  of  this  section.  The  taxes  so  paid  for 
principal  and  interest  on  such  bonded  indebtedness  shall  be  de- 
ducted from  the  total  amount  paid  in  taxes  for  State  purposes. 
(As  amended  1910). 


315 


APPENDIX  NO.  4.  CONSTITUTIONAL  PROVISIONS  ON 
BUDGET  METHODS 


(A)  Illinois  Constitution. 

Article  IV,  Sec.  16.  The  general  assembly  shall  make  no  ap- 
propriation of  money  out  of  the  treasury  in  any  private  law.  Bills 
making  appropriations  for  the  pay  of  members  and  officers  of  the 
general  assembly,  and  for  the  salaries  of  the  officers  of  the  govern- 
ment shall  contain  no  provision  on  any  other  subject. 

Sec.  17.  No  money  shall  be  drawn  from  the  treasury  except 
in  pursuance  of  an  appropriation  made  by  law,  and  on  the  presen- 
tation of  a warrant  issued  by  the  auditor  thereon;  and  no  money 
shall  be  diverted  from  any  appropriation  made  for  any  purpose,  ~or 
taken  from  any  fund  whatever,  either  by  joint  or  separate  resolu- 
tion. The  auditor  shall,  within  sixty  days  after  the  adjournment 
of  each  session  of  the  general  assembly,  prepare  and  publish  a 
full  statement  of  all  money  expended  at  such  session,  specifying  the 
amount  of  each  item,  and  to  whom  and  for  what  paid. 

Sec.  18.  Each  general  assembly  shall  provide  for  all  the  ap- 
propriations necessary  for  the  ordinary  and  contingent  expenses  of 
the  government  until  the  expiration  of  the  first  fiscal  quarter  after 
the  adjournment  of  the  next  regular  session,  the  aggregate  amount 
of  which  shall  not  be  increased  without  a vote  of  two-thirds  of  the 
members  elected  to  each  house,  nor  exceed  the  amount  of  revenue 
authorized  by  law  to  be  raised  in  such  time ; and  all  appropriations, 
general  or  special,  requiring  money  to  be  paid  out  of  the  State 
treasury,  from  funds  belonging  to  the  State,  shall  end  with  such 
fiscal  quarter:  Provided,  the  State  may,  to  meet  casual  deficits  or 
failures  in  revenues,  contract  debts,  never  to  exceed  in  the  aggre- 
gate two  hundred  and  fifty  thousand  dollars,  and  moneys  thus 
borrowed  shall  be  applied  to  the  purpose  for  which  they  wer- 
obtained,  or  to  pay  the  debt  thus  created,  and  to  no  other  pur- 
pose ; and  no  other  debt,  except  for  the  purpose  of  repelling  in- 
vasion, suppressing  insurrection,  or  defending  the  State  in  war  (for 
payment  of  which  the  faith  of  the  State  shall  be  pledged),  shall 
be  contracted,  unless  the  law  authorizing  the  same  shall,  at  a 
general  election,  have  been  submitted  to  the  people  and  have  re- 
ceived a majority  of  the  votes  cast  for  members  of  the  general  as- 
sembly at  such  election.  The  general  assembly  shall  provide  for 
the  publication  of  said  law  for  three  months,  at  least,  before  the 
vote  of  the  people  shall  be  taken  upon  the  same ; and  provision  shall 


316 


be  made,  at  the  time,  for  the  payment  of  the  interest  annually,  as 
it  shall  accrue,  by  a tax  levied  for  the  purpose,  or  from  otho- 
sources  of  revenue which  law,  providing  for  the  payment  of  such 
interest  by  such  tax,  shall  be  irrepealable  until  such  debt  be  paid : 
And,  provided,  further,  that  the  law  levying  the  tax  shall  be  sub- 
mitted to  the  people  with  the  law  authorizing  the  debt  to  be  con- 
tracted. 

Sec.  19.  The  general  assembly  shall  never  grant  or  author- 
ize extra  compensation,  fee  or  allowance  to  any  public  officer,  agent, 
servant  or  contractor,  after  service  has  been  rendered  or  a contract 
made,  nor  authorize  the  payment  of  any  claim,  or  part  thereof, 
hereafter  created  against  the  State  under  any  agreement  or  contract 
made  without  express  authority  of  law ; and  all  such  unauthorized 
agreements  or  contracts  shall  be  null  and  void ; Provided,  the 
general  assembly  may  make  appropriations  for  expenditures  in- 
curred in  suppressing  insurrection  or  repelling  invasion. 

Sec.  20.  The  state  shall  never  pay,  assume  or  become  respon- 
sible for  the  debts  or  liabilities  of,  or  in  any  manner  give,  loan  or 
extend  its  credit  to,  or  in  aid  of,  any  public  or  other  corporation, 
association  or  individual. 

Sec.  25.  The  general  assembly  shall  provide  by  law,  that  the 
fuel,  stationery  and  printing  paper  furnished  for  the  use  of  the 
State ; the  copying,  printing,  binding,  and  distributing  the  lav/s 
and  journals,  and  all  other  printing  ordered  by  the  general  assembly, 
shall  be  let  by  contract  to  the  lowest  responsible  bidder ; but  the 
general  assembly  shall  fix  a maximum  price,  and  no  member 
thereof,  or  other  officer  of  the  state,  shall  be  interested,  directly 
or  indirectly,  in  such  contract.  But  all  such  contracts  shall  be  sub- 
ject to  the  approval  of  the  Governor,  and  if  he  disapproves  the 
same,  there  shall  be  a reletting  of  the  contract,  in  such  manner 
as  shall  be  prescribed  by  law. 

Sec.  26.  The  state  of  Illinois  shall  never  be  made  defendant  in 
any  court  of  law  or  equity. 

Sec.  33.  The  general  assembly  shall  not  appropriate  out  of 
the  State  treasury,  or  expend  on  account  of  the  new  capitol  grounds, 
and  construction,  completion  and  furnishing  of  the  State  House, 
a sum  exceeding  in  the  aggregate  $3,500,000.00,  inclusive  of  all 
appropriations  heretofore  made,  without  first  submitting"  the  propo- 
sition for  an  additional  expenditure  to  the  legal  voters  of  the 
state  at  a general  election ; nor  unless  a majority  of  all  the  votes 
cast  at  such  election  shall  be  for  the  proposed  additional  expendi- 
ture. 

Article  V,  Sec.  7.  The  Governor  shall,  at  the  commencement 
of  each  session  and  at  the  close  of  his  term  of  office,  give  to  the 
general  assembly  information,  by  message,  of  the  condition  of  the 
state,  and  shall  recommend  such  measures  as  he  shall  deem  expe- 
dient. He  shall  account  to  the  general  assembly,  and  accompany 
his  message  with  a statement  of  all  moneys  received  and  paid  out  by 
him  from  any  funds  subject  to  his  order,  with  vouchers,  and  at  the 


317 


commencement  of  each  regular  session,  present  estimates  of  the 
amount  of  money  required  to  be  raised  by  taxation  for  all  purposes. 

Sec.  16.  Every  bill  passed  by  the  general  assembly  shall, 
before  it  becomes  a law,  be  presented  to  the  governor.  If  he  ap- 
prove, he  shall  sign  it,  and  thereupon  it  shall  become  a law ; but  if 
he  do  not  approve,  he  shall  return  it,  with  his  objections,  to  the 
house  in  which  it  shall  have  originated,  which  house  shall  enter  the 
objections  at  large  upon  its  journal  and  proceed  to  reconsider  the 
bill.  If  then  two-thirds  of  the  members  elected  agree  to  pass  the 
same,  it  shall  be  sent,  together  with  the  objections,  to  the  other 
House,  by  which  it  shall  likewise  be  reconsidered ; and  if  approved 
by  two-thirds  of  the  members  elected  to  that  house,  it  shall  become 
a law,  notwithstanding  the  objections  of  the  goverr^pr;  but  in  all 
such  cases  the  vote  of  each  house  shall  be  determined  by  yeas  and 
nays,  to  be  entered  upon  the  journal.  Bills  making  appropriations 
of  money  out  of  the  treasury  shall  specify  the  objects  and  pur- 
poses for  which  the  same  are  made,  and  appropriate  to  them  re- 
spectively their  several  amounts  in  distinct  items  and  sections. 
And  if  the  Governor  shall  not  approve  any  one  or  more  of  the 
items  or  sections  contained  in  any  bill,  but  shall  approve  the  residue 
thereof,  it  shall  become  a law,  as  to  the  residue,  in  like  manner 
as  if  he  had  signed  it.  The  Governor  shall  then  return  the  bill, 
with  his  objections  to  the  items  or  sections  of  the  same  not  approved 
by  him,  to  the  house  in  which  the  bill  shall  have  originated,  which 
house  shall  enter  the  objections  at  large  upon  its  journal,  and  pro- 
ceed to  reconsider  so  much  of  said  bill  as  is  not  approved  by  the 
governor.  The  same  proceedings  shall  be  had  in  both  houses  in  re- 
considering the  same  as  is  hereinbefore  provided  in  case  of  an 
entire  bill  returned  by  the  governor  with  his  objections;  and  if  any 
item  or  section  of  said  bill  not  approved  by  the  governor  shall  be 
passed  by  two-thirds  of  the  members  elected  to  each  of  the  two 
houses  of  the  general  assembly,  it  shall  become  part  of  said  law, 
notwithstanding  the  objections  of  the  governor.  Any  bill  which 
shall  not  be  returned  by  the  governor  within  ten  days  (Sundays 
excepted)  after  it  shall  have  been  presented  to  him,  shall  become 
a law  in  like  manner  as  if  he  had  signed  it,  unless  the  general  as- 
sembly shall  by  their  adjournment  prevent  its  return,  in  which  case 
it  shall  be  filed  with  his  objections  in  the  office  of  the  secretary  of 
state,  within  ten  days  after  such  adjournment,  or  become  a law. 
(As  amended  1884). 

Sec.  23.  The  officers  named  in  this  article  shall  receive  for  their 
services  a salary,  to  be  established  by  law,  which  shall  not  be  increased 
or  diminished  during  their  official  terms,  and  they  shall  not,  after  the 
expiration  of  the  terms  of  those  in  office  at  the  adoption  of  this  consti- 
tution, receive  to  their  own  use  any  fees,  costs,  perquisites  of  office,  or 
other  compensation.  And  all  fees  that  may  hereafter  be  payable  by 
law  for  any  services  performed  by  any  officer  provided  for  in  this  arti- 
cle of  the  constitution,  shall  be  paid  in  advance  into  the  state  treasury. 

Sec.  24.  An  office  is  a public  position  created  by  the  constitution 
or  law,  continuing  during  the  pleasure  of  the  appointing  power,  or  for 


318 


a fixed  time  with  a successor  elected  or  appointed.  An  employment  is 
an  agency,  for  a temporary  purpose,  which  ceases  when  that  purpose 
is  accomplished. 

Article  IX,  Sec.  7.  All  taxes  levied  for  state  purposes  shall  be 
paid  into  the  state  treasury. 


(B)  Maryland  Budget  Amendment  of  1916. 

Article  III,  Sec.  52.  The  general  assembly  shall  not  appropriate 
any  money  out  of  the  Treasury  except  in  accordance  with  the  following 
provisions : 

Sub-Section  A : Every  appropriation  bill  shall  be  either  a Bud- 

get Bill,  or  a Supplementary  Appropriation  Bill,  as  hereinafter  men- 
tioned. 

Sub-Section  B:  First:  Within  twenty  days  after  the  convening 

of  the  General  Assembly  (except  in  the  case  of  a newly  elected  Gov- 
ernor, and  then  within  thirty  days  after  his  inauguration),  unless  such 
time  shall  be  extended  by  the  general  assembly  for  the  session  at  which 
the  budget  is  to  be  submitted,  the  governor  shall  submit  to  the  general 
assembly  two  budgets,  one  for  each  of  the  ensuing  fiscal  years.  Each 
budget  shall  contain  a complete  plan  of  proposed  expenditures  and  es- 
timated revenues  for  the  particular  fiscal  year  to  which  it  relates ; and 
shall  show  the  estimated  surplus  or  deficit  of  revenues  at  the  end  of 
such  year.  Accompanying  each  budget  shall  be  a statement  showing: 
(1)  the  revenues  and  expenditures  for  each  of  the  two  fiscal  years  next 
preceding;  (2)  the  current  assets,  liabilities,  reserves  and  surplus  or 
deficit  of  the  State;  (3)  the  debts  and  funds  of  the  State;  (4)  an  esti- 
mate of  the  State’s  financial  condition  as  of  the  beginning  and  end  of 
each  of  the  fiscal  years  covered  by  the  two  budgets  above  provided ; 
(5)  any  explanation  the  governor  may  desire  to  make  as  to  the  im- 
portant features  of  any  budget  and  any  suggestion  as  to  methods  for 
the  reduction  or  increase  of  the  state’s  revenue. 

Second.  Each  budget  shall  be  divided  into  two  parts,  and  the  first 
part  shall  be  designated  “Governmental  Appropriations”  and  shall  em- 
brace an  itemized  estimate  of  the  appropriations:  (1)  for  the  general 
assembly  as  certified  to  the  governor  in  the  manner  hereinafter  pro- 
vided; (2)  for  the  executive  department;  (3)  for  the  judiciary  de- 
partment, as  provided  by  law,  certified  to  the  governor  by  the  comp- 
troller ; (4)  to  pay  and  discharge  the  principal  and  interest  of  the  debt 
of  the  state  of  Maryland  in  conformity  with  Section  34  of  Article  III 
of  the  Constitution,  and  all  laws  enacted  in  pursuance  thereof ; (5)  for 
the  salaries  payable  by  the  State  under  the  Constitution  and  laws  of  the 
State;  (6)  for  the  establishment  and  maintenance  throughout  the  State 
of  a thorough  and  efficient  system  of  public  schools  in  conformity  with 
Article  VIII  of  the  Constitution  and  with  the  laws  of  the  State;  (7) 
for  such  other  purposes  as  are  set  forth  in  the  Constitution  of  the  State. 

Third.  The  second  part  shall  be  designated  “General  Appropria- 
tions,” and  shall  include  all  other  estimates  of  appropriations. 


The  Governor  shall  deliver  to  the  presiding  officer  of  each  House 
the  budgets  and  a bill  for  all  the  proposed  appropriations  of  the  bud- 
gets clearly  itemized  and  classified ; and  the  presiding  officer  of  each 
house  shall  promptly  cause  said  bill  to  be  introduced  therein,  and  such 
bill  shall  be  known  as  the  “Budget  Bill.”  The  Governor  may,  before 
final  actions  thereon  by  the  General  Assembly,  amend  or  supplement 
either  of  said  budgets  to  correct  an  oversight  or  in  case  of  an  emer- 
gency, with  the  consent  of  the  general  assembly  by  delivering  such  an 
amendment  or  supplement  to  the  presiding  officers  of  both  houses;  and 
such  amendment  or  supplement  shall  thereby  become  a part  of  said 
budget  bill  as  an  addition  to  the  items  of  said  bill  or  as  a modification 
of  or  a substitute  for  any  item  of  said  bill  such  amendment  or  supple- 
ment may  affect. 

The  general  assembly  shall  not  amend  the  budget  bill  so  as  to  affect 
either  the  obligations  of  the  state  under  Section  34  of  Article  III  of  the 
Constitution,  or  the  provisions  made  by  the  laws  of  the  state  for  the 
establishment  and  maintenance  of  a system  of  public  schools,  or  the 
payment  of  any  salaries  required  to  be  paid  by  the  State  of  Maryland 
by  the  Constitution  thereof ; and  the  general  assembly  may  amend  the 
bill  by  increasing  or  diminishing  the  items  therein  relating  to  the  gen- 
eral assembly,  and  by  increasing  the  items  therein  relating  to  the  judi- 
ciary, but  except  as  hereinbefore  specified,  may  not  alter  the  said  bill 
except  to  strike  out  or  reduce  items  therein,  provided,  however,  that  the 
salary  or  compensation  of  any  public  officer  shall  not  be  decreased  dur- 
ing his  term  of  office ; and  such  bill  when  and  as  passed  by  both  houses 
shall  be  a law  immediately  without  further  action  by  the  governor. 

Fourth.  The  governor  and  such  representatives  of  the  executive 
departments,  boards,  officers  and  commissions  of  the  State  expending 
or  applying  for  State’s  money,  as  have  been  designated  by  the  gov- 
ernor for  this  purpose,  shall  have  the  right,  and  when  requested  by 
either  house  of  the  legislature,  it  shall  be  their  duty  to  appear  and  be 
heard  with  respect  to  any  budget  bill  during  the  consideration  thereof, 
and  to  answer  inquiries  relative  thereto. 

Sub-Section  C : Supplementary  Appropriation  Bills : Neither 

House  shall  consider  other  appropriations  until  the  Budget  Bill  has 
been  finally  acted  upon  by  both  Houses,  and  no  such  other  appropria- 
tion shall  be  valid  except  in  accordance  with  the  provisions  following : 
(1)  Every  such  appropriation  shall  be  embodied  in  a separate  bill  lim- 
ited to  some  single  work,  object  or  purpose  therein  stated  and  called 
herein  a Supplementary  Appropriation  Bill;  (a)  Each  Supplementary 
Appropriation  Bill  shall  provide  the  revenue  necessary  to  pay  the  ap- 
propriation thereby  made  by  a tax,  direct  or  indirect,  to  be  laid  and 
collected  as  shall  be  directed  in  said  Bill;  (3)  No  Supplementary  Ap- 
propriation Bill  shall  become  a law  unless  it  be  passed  in  each  house 
by  a vote  of  a majority  of  the  whole  number  of  the  members  elected ; 
and  the  yeas  and  nays  recorded  on  its  final  passage;  (4)  Each  Sup- 
plementary Appropriation  Bill  shall  be  presented  to  the  governor  of 
the  state  as  provided  in  Section  17  of  Article  II  of  the  Constitution  and 
thereafter  all  the  provisions  of  said  Section  shall  apply. 


320 


Nothing  in  this  amendment  shall  be  construed  as  preventing  the 
legislature  from  passing  at  any  time  in  accordance  with  the  provisions 
of  Section  28  of  Article  III  of  the  Constitution  and  subject  to  the  Gov- 
ernor’s power  of  approval  as  provided  in  Section  17  of  Article  II  of  the 
Constitution  an  appropriation  bill  to  provide  for  the  payment  of  any  ob- 
ligation of  the  State  of  Maryland  within  the  protection  of  Section  10  of 
Article  I of  the  Constitution  of  the  United  States. 

Sub-Section  D:  General  Provisions:  First,  If  the  Budget  Bill 

shall  not  have  been  finally  acted  upon  by  the  legislature  three  days  be- 
fore the  expiration  of  its  regular  session,  the  governor  may,  and  it 
shall  be  his  duty  to  issue  a proclamation  extending  the  session  for  such 
further  period  as  may,  in  his  judgment,  be  necessary  for  the  passage 
of  such  bill ; but  no  other  matter  than  such  bill  shall  be  considered  dur- 
ing such  extended  session  except  a provision  for  the  cost  thereof. 

Second.  The  Governor  for  the  purpose  of  making  up  his 
budgets  shall  have  the  power,  and  it  shall  be  his  duty,  to  acquire  from 
the  proper  state  officials,  including  herein  all  executive  departments, 
all  executive  and  administrative  offices,  bureaus,  boards,  commissions 
and  agencies  expending  or  supervising  the  expenditure  of,  and  all 
institutions  applying  for  state  moneys  and  appropriations,  such  item- 
ized estimates  and  other  information,  in  such  form  and  at  such  times 
as  he  shall  direct.  The  estimates  for  the  Legislative  Department, 
certified  by  the  presiding  officer  of  each  House,  of  the  judiciary,  as 
provided  by  law,  certified  by  the  comptroller,  and  for  the  public 
schools,  as  provided  by  law,  shall  be  transmitted  to  the  governor,  in 
such  form  and  at  such  times  as  he  shall  direct,  and  shall  be  included 
in  the  budget  without  revision. 

The  governor  may  provide  for  public  hearings  on  all  estimates 
and  may  require  the  attendance  at  such  hearings  of  representatives  of 
all  agencies,  and  of  all  institutions  applying  for  State  moneys.  After 
such  public  hearings  he  may,  in  his  discretion,  revise  all  estimates 
except  those  for  the  legislative  and  judiciary  departments,  and  for 
the  public  schools  as  provided  by  law. 

Third.  The  legislature  may,  from  time  to  time,  enact  such  laws, 
not  inconsistent  with  this  Section,  as  may  be  necessary  and  proper  to 
carry  out  its  provisions. 

Fourth.  In  the  event  of  any  inconsistency  between  any  of  the 
provisions  of  this  Section  and  any  of  the  other  provisions  of  the  Con- 
stitution, the  provisions  of  this  Section  shall  prevail.  But  nothing 
herein  shall  in  any  manner  affect  the  provisions  of  Section  34  of  Article 
III  of  the  Constitution  or  of  any  laws  heretofore  or  hereafter 
passed  in  pursuance  thereof,  or  be  construed  as  preventing  the  gov- 
ernor from  calling  extraordinary  sessions  of  the  legislature,  as  pro- 
vided by  Section  16  of  Article  II,  or  as  preventing  the  legislature  at 
such  extraordinary  sessions  from  considering  any  emergency  appro- 
priation or  appropriations. 

If  any  item  of  any  appropriation  bill  passed  under  the  provisions 
of  this  section  shall  be  held  invalid  upon  any  ground  such  invalidity 
shall  not  affect  the  legality  of  the  bill  or  of  any  other  item  of  such 
bill  or  bills. 


321 


(C)  Massachusetts  Budget  Amendment  of  1918. 

Article  LXIII,  Section  1.  Collection  of  Revenue. — All  money 
received  on  account  of  the  commonwealth  from  any  source  whatso- 
ever shall  be  paid  into  the  treasury  thereof. 

Sec.  2.  The  Budget. — Within  three  weeks  after  the  convening 
of  the  general  court  the  governor  shall  recommend  to  the  general 
court  a budget  which  shall  contain  a statement  of  all  proposed  ex- 
penditures of  the  commonwealth  for  the  fiscal  year,  including  those 
already  authorized  by  law,  and  of  all  taxes,  revenues,  loans  and  other 
means  by  which  such  expenditures  shall  be  defrayed.  This  shall  be 
arranged  in  such  form  as  the  general  court  may  by  law  prescribe,  or, 
in  default  thereof,  as  the  governor  shall  determine.  For  the  purpose 
of  preparing  his  budget,  the  governor  shall  have  power  to  require  any 
board,  commission,  officer  or  department  to  furnish  him  with  any 
information  which  he  may  deem  necessary. 

Sec.  3.  The  general  appropriation  bill. — All  appropriations  based 
upon  the  budget  to  be  paid  from  taxes  or  revenues  shall  be  incor- 
porated in  a single  bill  which  shall  be  called  the  general  appropriation 
bill.  The  general  court  may  increase,  decrease,  add  or  omit  items  in 
the  budget.  The  general  court  may  provide  for  its  salaries,  mileage, 
and  expenses  and  for  necessary  expenditures  in  anticipation  of  appro- 
priations, but  before  final  action  on  the  general  appropriation  bill  it 
shall  not  enact  any  other  appropriation  bill  except  on  recommendation 
of  the  governor.  The  governor  may  at  any  time  recommend  to  the 
general  court  supplementary  budgets  which  shall  be  subject  to  the 
same  procedure  as  the  original  budget. 

Sec.  4.  Special  Appropriation  Bills. — After  final  action  on  the 
general  appropriation  bill  or  on  recommendation  of  the  governor, 
special  appropriation  bills  may  be  enacted.  Such  bills  shall  provide 
the  specific  means  for  defraying  the  appropriations  therein  contained. 

Sec.  5.  Submission  to  the  Governor. — The  governor  may  dis- 
approve or  reduce  items  or  parts  of  items  in  any  bill  appropriating 
money.  So  much  of  said  bill  as  he  approves  shall  upon  his  signing 
the  same  become  law.  As  to  each  item  disapproved  or  reduced,  he 
shall  transmit  to  the  house  in  which  the  bill  originated  his  reason  for 
such  disapproval  or  reduction,  and  the  procedure  shall  then  be  the 
same  as  in  the  case  of  a bill  disapproved  as  a whole.  In  case  he  shall 
fail  so  to  transmit  his  reasons  for  such  disapproval  or  reduction  within 
five  days  after  the  bill  shall  have  been  presented  to  him,  such  items 
shall  have  the  force  of  law  unless  the  general  court  by  adjournment 
shall  prevent  such  transmission,  in  which  case  they  shall  not  be  law. 


322 


APPENDIX  NO.  5.  BUDGET  PROVISIONS  OF  CIVIL 
ADMINISTRATIVE  CODE  OF  ILLINOIS,  1917. 


Sec.  36.  The  Department  of  Finance  shall  have  power: 

1.  To  prescribe  and  require  the  installation  of  a uniform  sys- 
tem of  bookkeeping,  accounting  and  reporting  for  the  several  de- 
partments ; 

2.  To  prescribe  forms  for  accounts  and  financial  reports  and 
statements  for  the  several  departments ; 

3.  To  supervise  and  examine  the  accounts  and  expenditures  of 
the  several  departments ; 

4.  To  examine,  at  any  and  all  times,  into  the  accuracy  and 
legality  of  the  accounts,  receipts  and  expenditures  of  the  public 
moneys  and  the  disposition  and  use  of  the  public  property  by  the 
several  departments ; 

5.  To  keep  such  summary  and  controlling  accounts  as  may 
be  necessary  to  determine  the  accuracy  of  the  detail  accounts  and 
reports  from  the  several  departments,  and  to  prescribe  the  manner 
and  method  of  certifying  that  funds  are  available  and  adequate  to 
meet  all  contracts  and  obligations; 

6.  To  prescribe  uniform  rules  governing  specifications  for  pur- 
chases of  supplies,  the  advertisement  for  proposals,  the  opening  of 
bids  and  the  making  of  awards,  to  keep  a catalogue  of  prices  cur- 
rent and  to  analyze  and  tabulate  prices  paid  and  quantities  purchased ; 

7.  To  examine,  at  any  and  all  times,  the  accounts  of  every 
private  corporation,  institution,  association  or  board  receiving  ap- 
propriations from  the  general  assembly ; 

8.  To  report  to  the  Attorney  General  for  such  action,  civil  or 
criminal,  as  the  Attorney  General  may  deem  necessary,  all  facts 
showing  illegal  expenditures  of  the  public  money  or  misappropri- 
ation of  the  public  property ; 

9.  To  examine  and  approve,  or  disapprove,  vouchers,  bills  and 
claims  of  the  several  departments,  and  such  as  are  by  law  made  sub- 
ject to  the  approval  of  the  Governor  and  referred  to  it  by  the  Gov- 
ernor, and  no  voucher,  bill  or  claim  of  any  department  shall  be 
allowed  without  its  approval  and  certificate ; 

10.  To  prescribe  the  form  of  receipt,  voucher,  bill  or  claim  to 
be  filed  by  the  several  departments  with  it ; 

11.  In  settling  the  accounts  of  the  several  departments,  to  in- 
quire into  and  make  an  inspection  of  articles  and  materials  fur- 
nished or  work  and  labor  performed,  for  the  purpose  of  ascertaining 


323 


that  the  prices,  quality  and  amount  of  such  articles  or  labor  are 
fair,  just  and  reasonable,  and  that  all  the  requirements,  express  and 
implied,  pertaining  thereto  have  been  complied  with,  and  to  reject 
and  disallow  any  excess; 

12.  To  prepare  and  report. to  the  governor,  when  requested, 
estimates  of  the  income  and  revenues  of  the  state ; 

13.  To  prepare  and  submit  to  the  governor  biennially,  not  later 
than  the  first  day  of  January  preceding  the  convening  of  the  Gen- 
eral Assembly,  a State  budget ; 

14.  To  publish,  from  time  to  time,  for  the  information  of 
the  several  departments  and  of  the  general  public,  bulletins  of  the 
work  of  the  government; 

15.  To  investigate  duplication  of  work  of  departments  and  the 
efficiency  of  the  organization  and  administration  of  departments, 
and  to  formulate  plans  for  the  better  coordination  of  departments. 

Sec.  37.  In  the  preparation  of  a State  budget,  the  Director  of 
Finance  shall,  not  later  than  the  fifteenth  day  of  September  in  the 
year  preceding  the  convening  of  the  general  assembly,  distribute 
to  all  departments  and  to  all  offices  and  institutions  of  the  state 
government  (including  the  elective  officers  in  the  executive  depart- 
ment and  including  the  University  of  Illinois  and  the  judicial  de- 
partment) the  proper  blanks  necessary  to  the  preparation  of  budget 
estimate,  which  blanks  shall  be  in  such  form  as  shall  be  prescribed 
by  the  Director  of  Finance  to  procure  among  other  things,  informa- 
tion as  to  the  revenues  and  expenditures  for  the  two  preceding 
fiscal  years,  the  appropriations  made  by  the  previous  General 
Assembly,  the  expenditures  therefrom,  encumbrances  thereon,  and 
the  amounts  unencumbered  and  unexpended,  an  estimate  of  the 
revenues  and  expenditures  of  the  current  fiscal  year,  and  an  esti- 
mate of  the  revenues  and  amounts  needed  for  the  respective  de- 
partments and  offices  for  the  twro  years  rext  succeeding  begin- 
ning at  the  expiration  of  the  first  fiscal  quarter  after  the  adjourn- 
ment of  the  general  assembly.  Each  department,  office  and  institu- 
tion (including  the  elective  officers  in  the  executive  and  judicial 
departments  and  including  the  University  of  Illinois)  shall,  not 
later  than  the  first  day  of  November,  file  in  the  office  of  the  Di- 
rector of  Finance  its  estimate  of  receipts  and  expenditures  for  the 
succeeding  biennium.  Such  estimates  shall  be  accompanied  by  a 
statement  in  writing  giving  facts  and  explanation  of  reasons  for 
each  item  of  expenditure  requested.  The  Director  of  Finance  may, 
in  his  discretion,  make  further  inquiries  and  investigations  as  to 
any  item  desired.  He  may  approve,  disapprove  or  alter  the  esti- 
mates. He  shall,  on  or  before  the  first  day  of  January  preceding 
the  convening  of  the  general  assembly,  submit  to  the  governor  in 
writing  his  estimates  of  revenues  and  appropriations  for  the  next 
succeeding  biennium. 

Sec.  38.  The  Governor  shall  as  soon  as  possible  and  not  later 
than  four  weeks  after  the  organization  of  the  general  assembly  sub- 
mit a state  budget,  embracing  therein  the  amounts  recommended 


324 


by  him  to  be  appropriated  to  the  respective  departments,  offices, 
and  institutions,  and  for  all  other  public  purposes,  the  estimated  reve- 
nues from  taxation,  the  estimated  revenues  from  sources  other 
than  taxation,  and  an  estimate  of  the  amount  required  to  be  raised 
by  taxation.  Together  with  such  budget,  the  governor  shall  trans- 
mit the  estimates  of  receipts  and  expenditures,  as  received  by  the 
Director  of  Finance,  of  the  elective  officers  in  the  executive  and  ju- 
dicial departments  and  of  the  University  of  Illinois. 

Sec.  39.  Each  department  shall,  before  an  appropriation  to 
such  department  becomes  available  for  expenditure,  prepare  and 
submit  to  the  department  of  finance  an  estimate  of  the  amount  re- 
quired for  each  activity  to  be  carried  on,  and  accounts  shall  be 
kept  and  reports  rendered  showing  the  expenditures  for  each  such 
purpose. 


325 


APPENDIX  NO.  6.  CONSTITUTIONAL  PROVISIONS  ON 

DEBT  LIMITS 


(A)  Illinois  Constitution. 

Article  IV,  Sec.  18.  Each  general  assembly  shall  provide  for 
all  the  appropriations  necessary  for  the  ordinary  and  contingent  ex- 
penses of  the  government  until  the  expiration  of  the  first  fiscal 
quarter  after  the  adjournment  of  the  next  regular  session,  the  ag- 
gregate amount  of  which  shall  not  be  increased  without  a vote  of 
two-thirds  of  the  members  elected  to  each  house,  nor  exceed  the 
amount  of  revenue  authorized  by  law  to  be  raised  in  such  time ; 
and  all  appropriations,  general  or  special,  requiring  money  to  be 
paid  out  of  the  State  treasury,  from  funds  belonging  to  the  State, 
shall  end  with  such  fiscal  quarter : Provided,  the  State  may,  to 

meet  casual  deficits  or  failures  • in  revenues,  contract  debts,  never 
to  exceed  in  the  aggregate  two  hundred  and  fifty  thousand  dollars, 
and  moneys  thus  borrowed  shall  be  applied  to  the  purpose  for  which 
they  were  obtained,  or  to  pay  the  debt  thus  created,,  and  to  no  other 
purpose ; and  no  other  debt,  except  for  the  purpose  of  repelling  in- 
vasion, suppressing  insurrection,  or  defending  the  state  in  war 
(for  payment  of  which  the  faith  of  the  State  shall  be  pledged),  shall 
be  contracted,  unless  the  law  authorizing  the  same  shall,  at  a gen- 
eral election,  have  been  submitted  to  the  people  and  have  received 
a majority  of  the  votes  cast  for  members  of  the  general  assembly 
at  such  election.  The  general  assembly  shall  provide  for  the  pub- 
lication of  said  law  for  three  months,  at  least,  before  the  vote  of 
the  people  shall  be  taken  upon  the  same ; and  provision  shall  be 
made,  at  the  time,  for  the  payment  of  the  interest  annually,  as  it 
shall  accrue,  by  a tax  levied  for  the  purpose,  or  from  other  sources 
of  revenue ; which  law,  providing  for  the  payment  of  such  interest 
by  such  tax,  shall  be  irrepealable  until  such  debt  be  paid : And, 

provided,  further,  that  the  law  levying  the  tax  shall  be  submitted 
to  the  people  with  the  law  authorizing  the  debt  to  be  contracted. 

Sec.  20.  The  State  shall  never  pay,  assume  or  become  respon- 
sible for  the  debts  or  liabilities  of,  or  in  any  manner  give,  loan  or  ex- 
tend its  credit  to,  or  in  aid  of,  any  public  or  other  corporation,  asso- 
ciation or  individual. 

Sec.  33.  The  general  assembly  shall  not  appropriate  out  of  the 
state  treasury,  or  expend  on  account  of  the  new  capitol  grounds,  and 
construction,  completion  and  furnishing  of  the  state  house,  a sum  ex- 
ceeding in  the  aggregate  $3,500,000.00,  inclusive  of  all  appropriations 
heretofore  made,  without  first  submitting  the  proposition  for  an 
additional  expenditure  to  the  legal  voters  of  the  state  at  a general 
election;  nor  unless  a majority  of  all  the  votes  cast  at  such  election 
shall  be  for  the  proposed  additional  expenditure. 


326 


Article  IX,  Sec.  12.  No  county,  city,  township,  school  district 
or  other  municipal  corporation  shall  be  allowed  to  become  indebted  in 
any  manner  or  for  any  purpose  to  an  amount,  including  existing  in- 
debtedness, in  the  aggregate  exceeding  five  per  centum  on  the  value 
of  the  taxable  property  therein,  to  be  ascertained  by  the  last  assess- 
ment for  State  and  county  taxes  previous  to  the  incurring  of  such 
indebtedness.  Any  county,  city,  school  district  or  other  municipal 
corporation  incurring  any  indebtedness  as  aforesaid,  shall  before  or 
at  the  time  of  doing  so,  provide  for  the  collection  of  a direct  annual 
tax  sufficient  to  pay  the  interest  of  such  debt  as  it  falls  due,  and  also 
to  pay  and  discharge  the  principal  thereof  within  twenty  years  from 
the  time  of  contracting  the  same.  This  section  shall  not  be  construed 
to  prevent  any  county,  city,  township,  school  district  or  other  muni- 
cipal corporation,  from  issuing  their  bonds  in  compliance  with  any  vote 
of  the  people  which  may  have  been  had  prior  to  the  adoption  of  this 
constitution  in  pursuance  of  any  law  providing  therefor. 

Separate  section  on  Municipal  Subscriptions.  No  county,  city, 
town,  township  or  other  municipality  shall  ever  become  subscriber  to 
the  capital  stock  of  any  railroad  or  private  corporation,  or  make 
donation  to  or  loan  its  credit  in  aid  of  such  corporation:  Provided, 

however,  that  the  adoption  of  this  article  shall  not  be  construed  as 
affecting  the  right  of  any  such  municipality  to  make  such  subscriptions 
where  the  same  have  been  authorized,  under  existing  laws,  by  a vote 
of  the  people  of  such  municipalities  prior  to  such  adoption. 

Separate  section  on  Canal.  The  Illinois  and  Michigan  Canal, 
or  other  canal  or  waterway  owned  by  the  State  shall  never  be  sold 
or  leased  until  the  specific  proposition  for  the  sale  or  lease  thereof 
shall  first  have  been  submitted  to  a vote  of  the  people  of  the  State  at 
a general  election,  and  have  been  approved  by  a majority  of  all  the 
votes  polled  at  such  election.  The  general  assembly  shall  never  loan 
the  credit  of  the  State  or  make  appropriations  from  the  treasury 
thereof,  in  aid  of  railroads  or  canals : 

Provided,  that  any  surplus  earnings  of  any  canal,  waterway  or 
water  power,  may  be  appropriated  or  pledged  for  its  enlargement, 
maintenance  or  extensions ; and 

Provided  further,  that  the  general  assembly  may,  by  suitable  leg- 
islation, provide  for  the  construction  of  a deep  waterway  or  canal 
from  the  present  water  power  plant  of  the  Sanitary  District  of  Chi- 
cago, at  or  near  Lockport,  in  the  township  of  Lockport,  in  the  county 
of  Will,  to  a point  in  the  Illinois  River  at  or  near  Utica,  which  may 
be  practical  for  a general  plan  and  scheme  of  deep  waterway  along  a 
route,  which  may  be  deemed  most  advantageous  for  such  plan  of 
deep  waterway ; and  for  the  erection,  equipment  and  maintenance  of 
power  plants,  locks,  bridges,  dams  and  appliances  sufficient  and  suit- 
able for  the  development  and  utilization  of  the  water  power  thereof ; 
and  authorize  the  issue,  from  time  to  time,  of  bonds  of  this  State  in 
a total  amount  not  to  exceed  twenty  million  dollars,  which  shall  draw 
interest,  payable  semi-annually,  at  a rate  not  to  exceed  four  per  cent 
per  annum,  the  proceeds  whereof  may  be  applied  as  the  general  assem- 
bly may  provide,  in  the  construction  of  said  waterway  and  in  the 


327 


erection,  equipment  and  maintenance  of  said  power  plants,  locks, 
bridges,  dams  and  appliances. 

All  power  developed  from  said  waterway  may  be  leased  in  part 
or  in  whole,  as  the  general  assembly  may  by  law  provide;  but  in  the 
event  of  any  lease  being  so  executed,  the  rental  specified  therein  for 
water  power  shall  be  subject  to  a revaluation  each  ten  years  of  the 
term  created,  and  the  income  therefrom  shall  be  paid  into  the  treasury 
of  the  state.  (As  amended  1908.) 


(B)  Oklahoma  Constitution. 

Article  X,  Sec.  26.  No  county,  city,  town,  township,  school  dis- 
trict, or  other  political  corporation,  or  subdivision  of  the  state,  shall  be 
allowed  to  become  indebted,  in  any  manner,  for  any  purpose,  to  an 
amount  exceeding,  in  any  year,  the  income  and  revenue  provided  for 
such  year,  without  the  assent  of  three-fifths  of  the  voters  thereof,  vot- 
ing at  an  election,  to  be  held  for  that  purpose,  nor  in  cases  requiring 
such  assent,  shall  any  indebtedness  be  allowed  to  be  incurred  to  an 
amount  including  existing  indebtedness,  in  the  aggregate  exceeding 
five  per  centum  of  the  valuation  of  the  taxable  property  therein,  tQ  be 
ascertained  from  the  last  assessment  for  State  and  county  purposes, 
previous  to  the  incurring  of  such  indebtedness:  Provided,  That  any 

county,  city,  town,  township,  school  district,  or  other  political  corpora- 
tion, or  subdivision  of  the  State,  incurring  any  indebtedness,  requiring 
the  assent  of  the  voters  as  aforesaid,  shall,  before  or  at  the  time  of 
doing  so,  provide  for  the  collection  of  an  annual  tax  sufficient  to  pay 
the  interest  on  such  indebtedness  as  it  falls  due,  and  also  to  constitute  a 
sinking  fund  for  the  payment  of  the  principal  thereof  within  twenty- 
five  years  from  the  time  of  contracting  the  same. 

Sec.  27.  Any  incorporated  city  or  town  in  this  State  may,  by  a 
majority  of  the  qualified  property  taxpaying  voters  of  such  city  or 
town,  voting  at  an  election  to  be  held  for  that  purpose,  be  allowed 
to  become  indebted  in  a larger  amount  than  that  specified  in  section 
26,  for  the  purpose  of  purchasing  or  constructing  public  utilities,  or  for 
repairing  the  same,  to  be  owned  exclusively  by  such  city:  Provided, 
that  any  such  city  or  town  incurring  any  such  indebtedness  requiring 
the  assent  of'the  voters  as  aforesaid,  shall  have  the  power  to  provide 
for,  and,  before  or  at  the  time  of  incurring  such  indebtedness,  shall 
provide  for  the  collection  of  an  annual  tax  in  addition  to  the  other 
taxes  provided  for  by  this  constitution,  sufficient  to  pay  the  interest 
on  such  indebtedness  as  it  falls  due,  and  also  to  constitute  a sinking 
fund  for  the  payment  of  the  principal  thereof  within  twenty-five  years 
from  the  time  of  contracting  the  same. 


(C)  Ohio  Constitution. 

Article  XVIII,  Sec.  10.  A municipality  appropriating  or  other- 
wise acquiring  property  for  public  use  may  in  furtherance  of  such  pub- 


328 


lie  use  appropriate  or  acquire  an  excess  over  that  actually  to  be  oc* 
pied  by  the  improvement,  and  may  sell  such  excess  with  such  restric- 
tions as  shall  be  appropriate  to  preserve  the  improvement  made. 
Bonds  may  be  issued  to  supply  the  funds  in  whole  or  in  part  to  pay  for 
the  excess  property  so  appropriated  or  otherwise  acquired,  but  said 
bonds  shall  be  a lien  only  against  the  property  so  acquired  for  the  im- 
provement and  excess,  and  they  shall  not  be  a liability  of  the  munici- 
pality nor  be  included  in  any  limitation  of  the  bonded  indebtedness  of 
such  municipality  prescribed  by  law.  (Adopted  1912) 

Sec.  12.  Any  municipality  which  acquires,  constructs  or  extends 
any  public  utility  and  desires  to  raise  money  for  such  purposes  may  is- 
sue mortgage  bonds  therefor  beyond  the  general  limit  of  bonded  in- 
debtedness prescribed  by  law;  provided  that  such  mortgage  bonds  is- 
sued beyond  the  general  limit  of  bonded  indebtedness  prescribed  by 
law  shall  not  impose  any  liability  upon  such  municipality  but  shall  be 
secured  only  upon  the  property  and  revenues  of  such  public  utility,  in- 
cluding a franchise  stating  the  terms  upon  which,  in  case  of  foreclos- 
ure, the  purchaser  may  operate  the  same,  which  franchise  shall  in  no 
case  extend  for  a longer  period  than  twenty  years  from  the  date  of  the 
sale' of  such  utility  and  franchise  on  foreclosure.  (Adopted  1912.) 

Sec.  13.  Laws  may  be  passed  to  limit  the  power  of  municipalities 
to  levy  taxes  and  incur  debts  for  local  purposes,  and  may  require  re- 
ports from  municipalities  as  to  their  financial  condition  and  transac- 
tions, in  such  form  as  may  be  provided  by  law,  and  may  provide  for  the 
examination  of  the  vouchers,  books,  and  accounts  of  all  municipal 
authorities,  or  of  public  undertakings  conducted  by  such  authorities. 
{Adopted  1912.) 


(D)  Pennsylvania  Constitution. 

Article  IX,  Sec.  8.  The  debt  of  any  county,  city,  borough, 
township,  school  district,  or  other  municipality  or  incorporated  dis- 
trict, except  as  provided  herein,  and  in  secton  fifteen  of  this  article, 
shall  never  exceed  seven  (7)  per  centum  upon  the  assessed  value 
of  the  taxable  property  therein,  but  the  debt  of  the  city  of  Phila- 
delphia may  be  increased  in  such  amount  that  the  total  city  debt 
of  said  city  shall  not  exceed  ten  per  centum  (10)  upon  the  assessed 
value  of  the  taxable  property  therein,  nor  shall  any  such  municipal- 
ity or  district  incur  any  new  debt,  or  increase  its  indebtedness  to 
an  amount  exceeding  two  (2)  per  centum  upon  such  assessed  valu- 
ation of  property,  without  the  consent  of  the  electors  thereof  at  a 
public  election  in  such  manner  as  shall  be  provided  by  law.  In 
ascertaining  the  borrowing  capacity  of  the  said  city  of  Philadelphia, 
at  any  time,  there  shall  be  excluded  from  the  calculation  and  de- 
ducted from  such  debt  so  much  of  the  debt  of  said  city  as  shall  have 
been  incurred,  and  the  proceeds  thereof  invested,  in  any  public  im- 
provements of  any  character  which  shall  be  yielding  to  the  said  city 
an  annual  current  net  revenue.  The  amount  of  such  deduction  shall 
be  ascertained  by  capitalizing  the  annual  net  revenue  from  such 
improvement  during  the  year  immediately  preceding  the  time  of 


329 


such  ascertainment ; and  such  capitalization  shall  be  estimated  by 
ascertaining  the  principal  amount  which  would  yield  such  annual, 
current  net  revenue,  at  the  average  rate  of  interest,  and  sinking- 
fund  charges  payable  upon  the  indebtedness  incurred  by  said  city 
for  such  purposes,  up  to  the  time  of  such  ascertainment.  The 
method  of  determining  such  amount,  so  to  be  deducted,  may  be 
prescribed  by  the  general  assembly.  In  incurring  indebtedness 
for  any  purpose  the  city  of  Philadelphia  may  issue  its  obligations 
maturing  not  later  than  fifty  (50)  years  from  the  date  thereof,  with 
provision  for  a sinking-fund  sufficient  to  retire  said  obligations  at 
maturity,  the  payment  to  such  sinking-fund  to  be  in  equal  or 
graded  annual  or  other  periodical  installments.  Where  any  indebt- 
edness shall  be  or  shall  have  been  incurred  by  said  city  of  Phila- 
delphia for  the  purpose  of  the  construction  or  improvement  of 
public  works  of  any  character,  from  which  income  or  revenue  is  to 
be  derived  by  said  city,  or  for  the  reclamation  of  land  to  be  used 
in  the  construction  of  wharves  or  docks  owned  or  to  be  owned  by 
said  city,  such  obligations  may  be  in  an  amount  sufficient  to  pro- 
vide for,  and  may  include  the  amount  of,  the  interest  and  sinking- 
fund  charges  accruing  and  which  may  accrue  thereon  throughout 
the  period  of  construction,  and  until  the  expiration  of  one  year 
after  the  completion  of  the  work  for  which  said  indebtedness  shall 
have  been  incurred;  and  said  city  shall  not  be  required  to  levy  a. 
tax  to  pay  said  interest  and  sinking-fund  charges  as  required  by 
section  ten,  article  nine  of  the  constitution  of  Pennsylvania,  until 
the  expiration  of  said  period  of  one  year  after  the  completion  of 
said  work.  (As  amended  1918). 

Sec.  15.  Municipal  Indebtedness  for  Certain  Public  Works. 
No  obligations  which  have  been  heretofore  issued,  or  which  may 
hereafter  be  issued,  by  any  county  or  municipality,  other  than 
Philadelphia,  to  provide  for  the  construction  or  acquisition  of  water- 
works, subways,  underground  railways  or  street  railways,  or  the 
appurtenances  thereof,  shall  be  considered  as  a debt  of  a munici- 
pality, within  the  meaning  of  section  eight  of  article  nine  of  the  con- 
stitution of  Pennsylvania  or  of  this  amendment,  if  the  net  revenue 
derived  from  said  property  for  a period  of  five  years,  either  before 
or  after  the  acquisition  thereof,  or,  where  the  same  is  constructed 
by  the  county  or  municipality,  after  the  completion  thereof,  shall 
have  been  sufficient  to  pay  interest  and  sinking-fund  charges  during 
said  period  upon  said  obligations,  or  if  the  said  obligations  shall 
be  secured  by  liens  upon  the  respective  properties,  and  shall  im- 
pose no  municipal  liability.  Where  municipalities  or  counties  shall 
issue  obligations  to  provide  for  the  construction  of  property,  as 
herein  provided,  said  municipalities  or  counties  may  also  issue  ob- 
ligations to  provide  for  the  interest  and  sinking-fund  charges  ac- 
cruing thereon  until  said  properties  shall  have  been  completed  and 
in  operation  for  a period  of  one  year;  and  said  municipalities  and 
counties  shall  not  be  required  to  levy  a tax  to  pay  said  interest 
and  sinking-fund  charges,  as  required  by  section  ten  of  article  nine 
of  the  constitution  of  Pennsylvania,  until  after  said  properties  shall 


330 


have  been  operated  by  said  counties  or  municipalities  during  said 
period  of  one  year.  Any  of  the  said  municipalities  or  counties  may 
incur  indebtedness  in  excess  of  seven  per  centum,  and  not  exceed- 
ing ten  per  centum,  of  the  assessed  valuation  of  the  taxable  prop- 
erty therein,  if  said  increase  of  indebtedness  shall  have  been  as- 
sented to  by  three-fifths  of  the  electors  voting  at  a public  election,  in 
such  manner  as  shall  be  provided  by  law.  (Amendment  of  1913). 


(E)  North  Dakota  Constitution. 

Article  XII,  Sec.  182.  The  state  may  issue  or  guarantee  the 
payment  of  bonds,  provided  that  all  bonds  in  excess  of  two  million 
dollars  shall  be  secured  by  first  mortgages  upon  real  estate  in  amounts 
not  to  exceed  one-half  of  its  value ; or  upon  real  and  personal  property 
cf  state-owned  utilities,  enterprises  or  industries,  in  amounts  not  ex- 
ceeding its  value;  and,  provided  further,  that  the  state  shall  not  issue 
or  guarantee  bonds  upon  property  of  state-owned  utilities,  enterprises 
or  industries  in  excess  of  ten  million  dollars. 

No  future  indebtedness  shall  be  incurred  by  the  state  unless 
evidenced  by  a bond  issue,  which  shall  be  authorized  by  law  for  certain 
purposes,  to  be  clearly  defined.  Every  law  authorizing  a bond  issue 
shall  provide  for  levying  an  annual  tax,  or  make  other  provisions, 
sufficient  to  pay  the  interest  semi-annually,  and  the  principal  within 
thirty  years  from  the  passage  of  such  law,  and  shall  specially  appro- 
priate the  proceeds  of  such  tax,  or  of  such  other  provisions,  to  the 
payment  of  said  principal  and  interest,  and  such  appropriation  shall 
not  be  repealed  nor  the  tax  or  other  provisions  discontinued  until  such 
debt,  both  principal  and  interest,  shall  have  been  paid.  No  debt  in 
excess  of  the  limit  named  herein  shall  be  incurred  except  for  the  pur- 
pose of  repelling  invasion,  suppressing  insurrection,  defending  the 
state  in  time  of  war  or  to  provide  for  the  public  defense  in  case  of 
threatened  hostilities.  (As  amended  1918.) 

Sec.  183.  The  debt  of  any  county,  township,  city,  town,  school 
district  or  any  other  political  subdivision,  shall  never  exceed  five  per 
centum  upon  the  assessed  value  of  the  taxable  property  therein ; pro- 
vided, that  any  incorporated  city  may  by  a two-thirds  vote,  increase 
such  indebtedness,  three  per  centum  on  such  assessed  value  beyond 
said  five  per  cent  limit.  In  estimating  the  indebtedness  which  a city, 
county,  township,  school  district  or  any  other  political  subdivision  may 
incur,  the  entire  amount  of  existing  indebtedness,  whether  contracted 
prior  or  subsequent  to  the  adoption  of  this  constitution  shall  be  in- 
cluded ; provided,  further,  that  any  incorporated  city  may  become 
indebted  in  any  amount  not  exceeding  four  per  centum  on  such  as- 
sessed value,  without  regard  to  the  existing  indebtedness  of  such 
city  for  the  purpose  of  constructing  or  purchasing  water  works  for 
furnishing  a supply  of  water  to  the  inhabitants  of  such  city,  or  for  the 
purpose  of  constructing  sewers,  and  for  no  other  purpose  whatever. 
All  bonds  or  obligations  in  excess  of  the  amount  of  indebtedness  per- 
mitted by  this  constitution,  given  by  any  city,  county,  township,  town, 
school  district  or  any  other  political  subdivision,  shall  be  void. 


331 


TABLE  OF  CASES. 


Bell’s  Gap  R.  Co.  v.  Pennsylvania,  134  U.  S.  232  (1889),  266. 

Board  of  Education  v.  Haworth,  274  111.  538  (1916)  229. 

Booth  v.  Opel,  244  111.  317  (1910),  291. 

Commonwealth  v.  Barnett,  199  Pa.  State  161  (1901),  269. 

Consolidated  Coal  Co.  v.  Miller,  236  111.  149  (1908),  229. 

East  Moline  v.  Pope,. 224  111.  386  (1906),  291. 

Edwards  v.  People,  88  111.  340  (1878),  227. 

Fergus  v.  Brady,  277  111.  272  (1917),  275,  280,  281. 

Fergus  v.  Russel,  277  111.  20  (1915),  280. 

Fergus  v.  Russel,  270  111.  304  (1915),  269,  272,  278. 

First  Nat.  Bank  of  Urbana  v.  Holmes,  246  111.  362  (1910),  227. 
Fullmore  v.  Lane,  104  Tex.  499  (1911),  270. 

Home  Insurance  Co.  v.  New  York  134  U.  S.  594  (1889),  265. 

Joliet  v.  Alexander,  194  111.  457  (1902),  291. 

Lobdell  v.  Chicago,  227  111.  218  (1907),  291. 

Martens  v.  Brady,  264,  111.  178  (1914),  270,  271. 

Mitchell  v.  Lowden,  288  111.  124  (1919),  270. 

Northwestern  Univ.  v.  People,  86  111.  141  (1877),  229. 

Nowell  v.  Harrington,  122  Md.  487  (1914),  269. 

Ottawa  Glass  Co.  v.  McCaleb,  81  111.  556  (1876),  227. 

Pacific  Express  Co.  v.  Seibert,  142  U.  S.  339  (1891),  265. 

People  v.  Brady,  277  111.  124  (1917),  270. 

People  v.  Deutsche  Gemeinde,  249  111.  132  (1911),  229. 

People  v.  First  Cong.  Church,  232  111.  158  (1908),  229. 

People  v.  Honeywell,  258  111.  319  (1913),  291. 

People  v.  Joyce,  246  111.  124  (1910),  278. 

People  v.  Rhodes,  15  111.  304  (1853),  226. 

People  v.  Worthington,  21  111.  170  (1859),  227. 

Porter  v.  Rockford,  etc.  Co.,  76  111.  561  (1875),  227. 

Prince  v.  City  of  Quincy,  128  111.  443  (1889),  291. 

Raymond  v.  Chicago  U.  T.  Co.,  207  U.  S.  20  (1907),  227. 

Regents  of  Univ.  v.  Trapp,  28  Okla.  23  (1911),  270. 

Rinehart  v.  Schuyler,  7 111.  473  (1845),  226. 

Russell  v.  High  School  Board,  212  111.  327  (1904),  291. 

Sawyer  v.  Alton,  16  111.  127  (1841),  226. 

Schnell  v.  Rock  Island,  232  111.  89  (1908),  291. 

Sherlock  v.  Village  of  Winnetka,  68  111.  530  (1873),  227. 

State  v.  Forsythe,  21  Wyo.  359  (1913),  269. 

State  v.  Holder,  76  Miss.  158  (1898),  269. 

State  Bank  v.  People,  4 Scam.  303  (1843),  227. 

State  Board  of  Equalization  v.  People,  191  111.  528  (1901),  227. 

Supreme  Lodge  v.  Board  of  Review,  223  111.  54  (1906),  229. 

Teachers’  Federation  Cases,  191  111.  528  (1901),  207  U.  S.  20  (1907),  227. 
Trustees  v.  McConnell,  12  111.  158  (1850)  226. 

Wilson  v.  Board  of  Trustees,  113  111.  443  (1890),  291. 


CONSTITUTIONAL  CONVENTION 


BULLETIN  No.  5 


The  Short  Ballot 


Compiled  and  Published  by  the 

LEGISLATIVE  REFERENCE  BUREAU 

Springfield,  Illinois 


[Printed  by  authority  of  the  State  of  Illinois.] 


LEGISLATIVE  REFERENCE  BUREAU. 


Governor  Frank  O.  Lowden,  Chairman. 
Senator  Edward  C.  Curtis,  Grant  Park. 
Senator  Richard  J.  Barr,  Joliet. 
Representative  Edward  J.  Smejkal,  Chicago. 
Representative  William  P.  Holaday,  Danville. 


E.  J.  Verlie,  Secretary. 

W.  F.  Dodd,  in  charge  collection  of  data  for 
constitutional  convention. 


TABLE  OF  CONTENTS. 


PAGE. 

I.  Summary 337 

The  ballot  in  Illinois 337 

The  ballot  in  other  states  and  countries 337 

Criticism  of  the  long  ballot .337 

The  short  ballot  movement 333 

Specific  problems 333 

II.  The  Ballot  in  Illinois 339 

Early  conditions — the  Constitution  of  1818 339 

The  long  ballot  introduced — Constitution  of  1848 340 

A longer  ballot — Constitution  of  1870 342 

Statutory  changes  343 

The  official  ballot — the  “little  ballot’’ 343 

Primary  elections 344 

Frequency  of  elections 344 

Present  conditions 345 

III.  The  Ballot  in  Other  States  and  Countries 348 

Long  ballot  states 348 

Shorter  ballot  states  and  cities 349 

The  ballot  in  other  countries 351 

IV.  Criticism  of  the  Long  Ballot 353 

V.  The  Short  Ballot  Movement 356 

Short  ballot  principles ....356 

Indorsement  of  principles 356 

State  governors 358* 

Short  ballot  proposals 360 

Arguments  against  the  short  ballot 361 

Results  attained 363 

VI.  Specific  Problems 364 

State  executive  officers 364 

Election  of  judges 367 

County  officers 367 

Other  local  districts 368 

Appendix,  References 369 


THE  SHORT  BALLOT 


I.  SUMMARY. 


The  Ballot  in  Illinois.  Under  the  first  state  constitution  there 
were  only  eight  officers  to  be  voted  for  by  each  voter.  Some  additional 
local  officers  were  made  elective  by  statute.  The  constitution  of  1848 
provided  for  about  twenty  officers  to  be  voted  for  by  each  voter ; and 
the  constitution  of  1870  further  increased  the  number  to  about  twenty- 
five.  There  are  also  numerous  additional  local  elective  officers  estab- 
lished by  statute,  mostly  elected  at  numerous  elections  in  the  spring. 
Primary  elections  have  increased  the  number  of  elections  and  also  the 
length  of  the  ballot.  At  the  quadrennial  November  elections  from 
twenty-five  to  thirty  state  and  local  officers  are  voted  for  throughout 
the  state ; in  Cook  county  there  are  over  forty  such  officers  elected ; 
and  in  addition  the  twenty-nine  presidential  electors.  The  ballots  in 
Cook  county  at  such  elections  often  contain  about  four  hundred  names, 
and  have  had  as  may  as  433  names.  A typical  ballot  for  a down  state 
district  in  1916  had  222  candidates  for  49  offices. 


The  Ballot  in  other  states  and  countries.  Most  American  states 
have  also  a numerous  list  of  elective  officers  and  a long  ballot ; and 
in  some  instances  the  size  of  the  ballot  and  the  number  of  candidates 
are  about  as  large  as  in  Illinois.  In  a few  states,  however,  there  is  a 
smaller  number  of  elective  offices  and  a shorter  ballot.  Ohio  and  Penn- 
sylvania have  only  five  and  six  elective  State  officers ; and  Massachu- 
setts and  Vermont  have  a smaller  number  of  elective  county  officers 
than  most  states.  In  Maine,  New  Hampshire,  New  Jersey  and  Ten- 
nessee the  governor  is  the  only  state  executive  officer  elected  at  large ; 
while  Rhode  Island  has  no  elective  county  officers.  Recent  city  chart- 
ers and  laws  on  municipal  government  have  in  most  cases  reduced  the 
number  of  elective  officials,  and  provided  a short  ballot  for  city  elec- 
tions. In  the  national  government  a short  ballot  system  is  provided. 

In  other  countries,  executive  and  judicial  officers  are  appointive. 
The  only  elective  officials  are  the  members  of  representative  bodies, 
and  the  ballot  is  much  shorter  and  simpler  than  in  this  country.  In 
Great  Britain  the  ballot  usually  has  only  two  or  three  names,  and  sel- 
dom more  than  five  or  six. 


Criticism  of  the  long  ballot.  Some  criticism  of  the  multi- 
plicity of  elective  officers  is  to  be  found  from  comparatively  early 


338 


times, — as  in  the  Illinois  constitutional  convention  of  1870.  More  re- 
cently the  long  ballot  has  been  more  actively  opposed,  on  the  ground 
that  it  imposes  an  impossible  task  on  the  voter,  and  in  effect  dis- 
franchises the  voter  and  prevents  popular  control  of  the  government. 


The  short  ballot  movement.  Since  1900  there  has  been  an  in- 
creasing demand  for  a “short  ballot”,  based  on  the  principles  of  (1) 
electing  only  to  the  important  offices  which  attract  public  attention, 
and  (2)  electing  only  a few  officers  at  one  time.  These  principles 
have  been  indorsed  and  supported  by  some  of  the  most  prominent  men 
in  public  life,  in  different  political  parties,  including  all  of  the  three 
latest  Presidents  of  the  United  States  (Roosevelt,  Taft  and  Wilson), 
also  by  Governor  Hughes  and  Senator  Elihu  Root  of  New  York.  The 
governors  of  more  than  three-fourths  of  the  states  have  openly  ad- 
vocated the  short  ballot  in  their  messages  to  the  legislatures  and  in 
their  annual  conferences.  Among  these  may  be  noted  Governors 
Dunne  and  Lowden  of  Illinois. 

More  formal  proposals  for  .applying  short  ballot  principles  have 
been  presented  in  a number  of  states.  These  include  the  proposals 
first  brought  forward  in  Oregon  in  1909,  the  reports  of  economy  and 
efficiency  commissions  on  the  reorganization  of  state  government — 
notably  in  Iowa  and  Delaware — and  the  proposed  revised  constitution 
for  the  state  of  New  York  prepared  by  the  constitutional  convention 
of  1915.  In  Illinois  the  short  ballot  has  received  popular  indorsement 
on  a public  policy  vote  in  1912,  with  508,780  votes  in  favor  to  165,270 
against. 


Specific  problems.  Some  of  the  specific  problems  to  be  met  in 
the  application  of  short  ballot  principles  may  be  briefly  noted.  In  con- 
nection with  the  state  executive  officers,  the  governor  may  be  made  the 
only  elective  state  officer ; but  special  questions  have  been  raised  as  to 
the  need  for  a lieutenant  governor,  the  independence  of  the  auditor, 
and  the  position  of  the  attorney-general.  Elective  judges  may  be 
reconciled  with  the  short  ballot  by  separate  judicial  elections,  except 
in  a metropolitan  community  like  Chicago,  where  the  large  number  of 
judges  calls  for  special  treatment.  For  county  and  other  local  offi- 
cers, if  constitutional  requirements  for  elective  officers  are  eliminated, 
changes  in  organization  may  be  made  by  legislation,  subject  to  local 
option,  or  under  provisions  for  local  home  rule. 


339 


II.  THE  BALLOT  IN  ILLINOIS. 


Early  conditions — Constitution  of  1818.  Before  Illinois  was 
admitted  to  the  Union  as  a state  there  was  no  general  system  of  popu- 
lar elections.  During  the  territorial  period  county  and  township  officers 
were  appointed.  Members  of  the  territorial  legislature,  established 
in  1812,  were  elected  apparently  by  oral  or  viva  voce  voting  without 
the  use  of  ballots. 

Under  the  first  state  constitution  .(1818)  only  a few  elective  offi- 
ces were  provided, — two  state  officers,  members  of  the  legislature,  and 
some  county  officers.  Including  the  state’s  representative  in  Con- 
gress the  list  of  elective  officers  was  as  follows : 

Governor 

Lieutenant  Governor 

Representative  in  Congress 

State  Senators 

State  Representatives 

County  Commissioners 

Sheriff 

Coroner 

By  another  clause  of  the  constitution  viva  voce  voting  was  con- 
tinued until  changed  by  the  General  Assembly. 

Section  22  of  Article  III  of  the  Constitution  of  1818  gave  the 
governor  what  appears  in  itself  to  be  a general  power  (by  and  with 
the  advice  and  consent  of  the  senate)  to  “appoint  all  officers  whose 
offices  are  established  by  the  constitution,  or  shall  be  established  by 
law,  and  whose  appointments  are  not  herein  otherwise  provided  for”. 
But  this  power  was  in  fact  so  limited  by  other  provisions  of  the  con- 
stitution and  by  later  acts  of  the  general  assembly  that  the  governor 
was  without  any  real  appointing  power. 

The  section  providing  for  the  governor’s  power  of  appointment 
also  provided  that  inferior  officers  should  be  appointed  in  such  manner 
as  the  general  assembly  may  prescribe.  The  article  on  the  Judiciary 
gave  to  the  general  assembly  the  appointment  of  judges  of  the  Supreme 
Court  and  all  inferior  courts.  Section  10  of  the  Schedule  provided 
that : 

“An  auditor  of  public  accounts,  an  attorney  general,  and  such 
other  officers  for  the  state  as  may  be  necessary,  may  be  appointed  by 
the  general  assembly,  whose  duties  may  be  regulated  by  law.” 

The  actual  operation  of  these  provisions  has  been  described  as  fol- 
lows : 

“The  governors  were  for  a time  allowed  to  appoint  state’s  attor- 
neys, recorders,  state  commissioners,  bank  directors,  etc.,  but  the  legis- 


340 


lature  afterwards  vested  by  law  the  appointment  of  all  these  and  many 
more  in  themselves.  Occasionally,  when  in  full  political  accord,  the 
governor  would  be  allowed  the  appointing  power  pretty  freely,  to  per- 
haps be  shorn  of  it  by  a succeeding  legislature.  In  the  administration 
of  Duncan,  who  had  forsaken  Jackson  and  incurred  the  displeasure 
of  the  dominant  party,  the  governor  was  finally  stripped  of  all  patron- 
age, except  the  appointment  of  notaries  public  and  public  administra- 
tors. It  was  a bad  feature  of  the  constitution ; it  not  only  deprived 
the  people  of  their  just  right  to  elect  the  various  officers  as  at  pres- 
ent, but  led  hordes  of  place  hunters  to  repair  to  the  seat  of  govern- 
ment at  every  session  of  the  legislature  to  besiege  and  torment  mem- 
bers for  office.  Indeed  this  was  the  chief  occupation  of  many  an  hon- 
orable member.  Innumerable  intrigues  and  corruptions  for  place  and 
power  were  indulged.”1 

In  the  case  of  Field  v.  People  (1839),  it  was  stated  that  “the 
practical  construction  which  this  section  has  received  takes  from  the 
governor  all  appointments  except  such  as  are  expressly  given  him.”2 
Even  in  the  case  of  the  Secretary  of  State,  the  Governor’s  power  was 
limited  by  the  concurrence  of  the  Senate,  and  he  could  not  remove 
that  officer. 

During  the  period  of  the  first  state  constitution,  some  additional 
local  officers  were  made  elective  by  statute,  including  justices  of  the 
peace  (1827),  county  clerks  and  treasurers  (1837),  county  recorders 
and  surveyors  (1845),  and  also  municipal  officers  in  incorporated 
towns  and  cities. 


Constitution  of  1848 — the  long  ballot  introduced.  When  the 
second  constitutional  convention  met  in  1847,  there  was  a strong  de- 
mand to  abolish  the  method  of  legislative  appointments,  and  this 
was  done  by  extending  the  system  of  popular  elections.  This  was  in 
accordance  with  a general  tendency  throughout  the  country,  as  indi- 
cated in  the  new  constitutions  and  constitutional  amendments  in  other 
states.  But  it  may  be  noted  that  the  elective  system  was  expanded  on 
account  of  dissatisfaction  with  legislative  control,  and  did  not  deprive 
the  executive  of  any  important  power. 

In  the  new  constitution  the  use  of  the  ballot  was  definitely  estab- 
lished, in  place  of  the  former  system  of  viva  voce  voting;  and  at  the 
same  time  the  number  of  elective  offices  was  notably  increased.  It  was 
a ballot  of  considerable  length  which  came  into  use  at  this  time.  The 
constitution  provided  for  the  following  elective  officers: 

Elected  at  large: 

Governor 

Lieutenant  Governor 
Secretary  of  State 
Auditor  of  Public  Accounts 
State  Treasurer 


1 Davidson  and  Stuve:  History  of  Illinois,  p.  297. 

3 Field  v.  People.  3 111.  79  (1839). 


341 


Elected  by  districts: 

3 judges  of  the  Supreme  Court 
Circuit  judges 

3 Clerks  of  the  Supreme  Court 
State’s  Attorneys 
25  State  Senators 
75  Representatives 

County  Officers : 

County  judge 
Clerk  of  Circuit  Court 
Clerk  of  County  Court 
Sheriff 

County  Justices 
Justices  of  the  Peace 

All  of  these  were  elected  at  the  regular  November  elections,  except 
judges  and  supreme  court  clerks,  who  were  chosen  at  judicial  elec- 
tions in  June.  Besides  the  state  officers,  there  were  also  elected  presi- 
dential electors  every  fourth  year,  and  members  of  the  national  house 
of  representatives  every  second  year.  Thus  at  the  general  elections,  in 
presidential  years,  there  were  no  less  than  fifteen  state  and  local  officers 
to  be  elected ; and  the  presidential  electors  in  addition. 

With  the  establishment  of  the  township  system  in  1849,  a further 
list  of  town  officers  was  established  in  all  counties  which  adopted  the 
township  system.  There  were  also  municipal  officers  in  cities  and  in- 
corporated towns ; and  in  the  city  charters  enacted  about  this  time 
(after  1850),  the  number  of  elective  officers  was  notably  increased. 
Thus  in  the  Chicago  charter  of  1851,  the  following  officers  were  elec- 
tive : mayor,  marshal,  treasurer,  collector,  surveyor, . attorney,  chief 
and  assistant  engineers  of  the  fire  department,  a street  commissioner 
for  each  of  the  three  divisions,  and  an  alderman  and  a police  constable 
for  each  ward. 

These  statutory  local  officers  were,  however,  generally  elected  at 
a different  time  than  the  state  and  county  officers  provided  for  in  the 
state  constitution. 

That  the  increase  of  elective  officers  in  the  constitution  of  1848 
was  due  to  distrust  of  the  legislature  and  not  of  the  executive  is  evi- 
denced by  the  retention  of  the  section  relating  to  the  appointing  power 
of  the  governor,  with  an  important  provision  added  curtailing  the  ap- 
pointing power  of  the  general  assembly.  The  revised  section  reads : 

“The  Governor  shall  nominate  and,  by  and  with  the  advice  and 
consent  of  the  Senate  (a  majority  of  all  the  senators  concurring)  ap- 
point all  officers  whose  offices  are  established  by  the  constitution,  or 
which  may  be  created  by  law,  and  whose  appointments  are  not  other- 
wise provided  for;  and  no  such  officer  shall  be  appointed  or  elected  by 
the  general  assembly  ”z 

By  continuing  the  provision  for  the  governor’s  power  of  appoint- 
ment and  at  the  same  time  absolutely  prohibiting  appointments  by  the 


8 Constitution  of  1848,  Art.  V,  Section  10. 


342 


general  assembly,  the  convention  of  1847  indicated  forcibly  that  the 
main  purpose  of  the  changes  made  was  to  take  away  the  appointing 
power  of  the  general  assembly.  In  consequence  a firm  basis  was  laid 
for  the  development  of  the  governor’s  appointing  power.  As  additional 
state  officers  were  established,  it  became  evident  that  the  elective  sys- 
tem could  not  be  indefinitely  extended,  and  such  positions  were  for  the 
most  part  filled  by  the  governor. 

This  section  was  retained  with  minor  changes  in  the  constitution 
of  1870;  and  with  the  great  expansion  of  state  functions  since  that 
time  both  the  number  and  importance  of  the  appointive  offices  has 
steadily  increased.  No  clear  line  of  distinction  now  exists  between  the 
elective  and  appointive  offices.  Especially  since  the  passage  of  the 
Civil  Administrative  Code  in  1919,  the  appointed  heads  of  some  of  the 
new  administrative  departments  deal  with  matters  of  more  importance 
and  more  public  interest  than  some  of  the  elective  offices. 


Constitution  of  1870 — A longer  ballot.  The  third  constitution 
of  Illinois,  that  of  1870,  added  still  further  to  the  number  of  elective 
state  and  county  offices  and  the  length  of  the  ballot.  The  following 
elective  officers  were  authorized  by  this  constitution : 

Elected  at  large 
Governor 

Lieutenant  Governor 
- Secretary  of  State 
Auditor  of  Public  Accounts 
Treasurer  (Two  years) 

Superintendent  of  Public  Instruction 
Attorney  General 

Elected  by  districts 

7 judges  of  the  Supreme  Court  (1  from  each  district) 

3 clerks  of  the  Supreme  Court  (1  from  each  grand 
division) 

Circuit  Judges 

51  State  Senators  (1  from  each  district) 

153  Representatives  (3  from  each  district) 

County  Officers 

County  Commissioners 
County  Judge 
Probate  Judge 
County  Clerk 
Circuit  Clerk 
Recorder  of  Deeds 
Sheriff 
Treasurer 
Coroner 

County  Superintendent  of  Schools. 


343 


Not  all  of  these,  however,  were  to  be  elected  at  the  same  time. 
The  judges  continued  to  be  elected  in  June;  and  the  Superintendent 
of  Public  Instruction  was  to  be  elected  in  the  middle  of  the  four  year 
term  of  the  governor.  County  commissioners  have  been  replaced  by 
town  supervisors  in  counties  which  have  adopted  the  township  system ; 
and  probate  judges  and  recorders  were  authorized  only  for  the  larger 
counties.  Allowing  for  these,  and  including  members  of  Congress, 
there  was  a minimum  of  17  state  and  local  officers  to  be  voted  for  at 
the  quadrennial  November  elections,  besides  the  presidential  electors. 
In  Cook  County,  where  a special  board  of  15  county  commissioners 
was  provided,  10  elected  at  large  from  the  City  of  Chicago,  there 
were  30  officers  to  be  elected  in  addition  to  the  presidential  electors  at 
the  quadrennial  November  election.  Additional  judges  were  also  pro- 
vided for  Cook  County,  which  increased  the  length  of  the  ballot  at  the 
judicial  elections. 


Statutory  changes.  The  ballot  has  been  further  lengthened 
and  also  changed  in  other  respects  by  statutory  legislation  from  time 
to  time.  The  members  of  the  state  board  of  equalization  were  elected 
by  congressional  districts,  but  this  board  has  been  eliminated  by  act  of 
1919  ; and  the  trustees  of  the  University  of  Illinois  have  also  been  made 
elective,  three  being  chosen  at  each  biennial  election.  Popular  election 
of  United  States  Senators  has  added  another  elective  office. 

The  cities  and  villages  act  of  1872  provided  a comparatively  small 
list  of  elective  officers  for  cities  under  this  act.  But  additional  elective 
local  officers  have  been  created  by  other  legislation,  especially  by  acts 
providing  for  local  districts  for  particular  purposes,  such  as  school  and 
road  districts,  drainage  and  sanitary  districts,  park  districts  and  public 
health  districts.  Probate  judges  and  clerks  and  county  auditors  have 
also  been  provided  for  the  larger  counties. 

These  additional  elective  officers  are  most  numerous  in  Cook 
County,  where  there  have  been  provided  20  circuit  judges,  20  superior 
court  judges,  31  municipal  court  judges,  a board  of  sanitary  district 
trustees,  a board  of  assessors  and  a board  of  review. 

Some  of  these  new  local  officers  are  elected  at  the  general  No- 
vember elections.  But  many  of  them  are  chosen  at  local  elections  held 
at  various  dates  in  the  spring.  The  multiplication  of  these  local  elec- 
tions has  kept  down  the  length  of  the  ballot  used  at  each  election ; but 
it  has  added  to  the  burden  on  the  conscientious  voter  who  undertakes 
to  exercise  his  political  rights  on  all  occasions. 


The  Official  Ballot — The  Little  Ballot.  The  adoption  of  the 
official  ballot  in  1891  marked  an  important  change  in  procedure,  which 
emphasized  the  effect  of  previous  measures.  Up  to  this  time  ballots 
had  been  printed  by  candidates  or  party  organizations,  each  ballot  con- 


344 


taining  only  one  list  of  names  to  be  voted;  and  most  voters  did  not 
trouble  to  examine  all  the  different  ballots  containing  all  of  the  various 
candidates.  But  on  the  official  ballot,  all  the  candidates  regularly 
nominated  by  all  parties  were  given ; and  with  a number  of  parties 
in  the  field,  the  total  number  of  candidates  presented  to  the  voter 
now  became  bewildering.  The  problem  was  somewhat  simplified  for 
the  regular  party  voter,  by  the  use  of  the  party  column ; but  the  ap- 
pearance of  the  ‘‘blanket  ballot”  at  a general  election  gave  some  indi- 
cation of  the  task  for  the  voter  who  attempted  to  exercise  his  personal 
choice  for  all  of  the  numerous  elective  offices. 

Special  difficulties  were  soon  evident  in  the  voting  on  constitu- 
tional amendments  and  other  measures  submitted  to  popular  vote. 
Such  propositions  did  not  adapt  themselves  to  the  party  column  sys- 
tem ; and,  as  a result,  they  were  often  overlooked,  and  the  vote  on 
them  fell  to  about  twenty  per  cent  of  the  vote  for  officers.  To  meet 
this  condition  an  act  was  passed  in  1899  providing  that  such  measures 
should  be  printed  on  a separate  ballot ; and  the  result  of  the  use  of 
this  “little  ballot”  in  Illinois  has  been  a marked  increase  in  the  vote 
cast  on  amendments  and  other  propositions. 


Primary  Elections.  The  introduction  of  the  primary  elec- 
tion system  has  also  affected  the  ballot  and  election  methods  in  Illi- 
nois. It  has  meant,  in  the  first  place,  a further  increase  in  the  number 
of  elections,  most  notable  in  connection  with  the  many  local  elections 
in  the  spring.  In  some  of  these  local  elections  where  there  are  but 
few  contests  this  has  seemed  to  add  a good  deal  of  unnecessary  trouble 
and  expense.  Where  there  are  active  contests  and  many  candidates, 
the  ballot  presents  a puzzling  problem  to  the  voter.  Separate  ballots 
are  prepared  for  each  party;  but  there  are  no  groups  of  rival  candi- 
dates which  can  be  voted  for  as  a whole  by  a single,  mark;  and  each 
voter  is  called  on  to  mark  his  selection  for  each  of  the  numerous 
offices. 


Frequency  of  Elections.  The  number  of  elections  in  Illinois 
is  indicated,  by  the  table  below.  In  the  year  of  a presidential  election 
there  are  no  less  than  nine  or  ten  regular  public  elections  (outside 
of  Chicago).  There  are  six  elections  each  year  in  the  spring  months; 
and  in  years  when  judges  are  elected  there  are  seven  elections  within 
a period  of  six  months. 

Elections  in  Illinois. 

Primary  election  for  cities,  February 
Township  primary,  (No  time  fixed  by  law) 

Township  and  Road  District  Election,  April,  first  Tuesday 
Presidential  primary,  April,  (every  fourth  year) 

School  Trustees  Election,  April,  second  Saturday 


345 


City  and  Village  Elections,  April,  (first  or  third  Tuesday) 
School  directors  and  Boards  of  Education,  April,  third  Satur- 
day 

Supreme  Court  and  Circuit  Judges,  June 

State  primaries,  September,  (every  second  year) 

General  State  election,  November,  (every  second  year) 
County  Commissioners  (in  counties  not  under  township  or- 
ganization), November,  (every  year) 


Present  conditions.  As  a result  of  constitutional  and  statutory 
provisions  the  voter  in  Illinois  is  called  on  to  vote  for  the  following 
elective  officers : 

Elected  at  large 

Presidential  electors  (29) 

Governor 

*■  Lieutenant  Governor 
Secretary  of  State 
Auditor  of  Public  Accounts 
Treasurer 

Superintendent  of  Public  Instruction 

Attorney  General 

Clerk  of  Supreme  Court 

Trustees  of  the  University  of  Illinois  (9) 

United  States  Senators 
Representatives  in  Congress  at  large  (2) 

Elected  by  districts 
Judges  of  the  Supreme  Court 
Circuit  Judges 
Representatives  in  Congress 
State  Senators 
Representatives 

County  Officers 
State’s  Attorney 
County  Judge 
County  Clerk 
Circuit  Clerk 
Sheriff 
Treasurer 
Coroner 

County  Superintendent  of  Schools 
Surveyor 

Probate  Judge  (in  larger  counties) 

Clerk  of  Probate  Court  (in  larger  counties) 

Recorder  (in  larger  counties) 


346 


County  Auditors  (in  larger  counties) 

County  Commissioners  (in  counties  not  under  township 
organization  and  in  Cook  county) 

Township  officers 

Supervisor  (also  assistant  supervisors  in  larger  towns) 

Town  Clerk 

Assessor 

Justices  of  the  Peace 
Highway  Commissioner 
Constables 

City  officers  (under  Cities  and  Villages  Act) 

Mayor 
City  Clerk 
City  Treasurer 
City  Attorney 

Judge  of  City  Court  (in  some  cities) 

Aldermen 

Village  officers 
Trustees 
Clerk 

Police  magistrates 

School  officers 
School  trustees 

School  directors  or  members  of  boards  of  education. 
Township  boards  of  education  (high  school  districts) 

Omitting  judges  and  local  officers  elected  at  other  times,  the  vot- 
ers throughout  Illinois  are  called  on  at  the  quadrennial  November 
election  to  vote  for  about  20  state  and  local  officers,  and  in  addition 
for  29  presidential  electors,  a total  of  about  50.  The  ballots  at  these 
elections  regularly  have  the  names  of  100  to  150  candidates  for  state 
and  local  offices ; and,  including  candidates  for  presidential  electors, 
have  from  200  to  250  names.  A typical  ballot  for  a down-state  district 
in  1916  contained  the  names  of  222  candidates  for  49  offices. 

In  Chicago  and  Cook  County  there  are  twice  as  many  state  and 
local  officials  to  be  elected  as  in  other  counties.  In  addition  to  the 
usual  state  and  county  officers,  there  are  several  additional  court  clerks, 
15  county  commissioners  and  10  municipal  court  judges  chosen  at  the 
general  November  elections ; and  at  the  judicial  elections  there  are  now 
40  circuit  and  superior  court  judges  to  be  chosen  in  Cook  County.  In 
November,  1916  each  male  voter  in  Chicago  was  expected  to  vote 
for  71  different  officials ; and  in  November.  1918  for  55.  In  Cook 
County,  outside  of  Chicago,  each  male  voter  was  asked  to  vote  for 
61  officials  in  1916  and  for  35  in  1918.  In  a period  of  nine  years, 
each  male  voter  in  Chicago  is  called  on  to  vote  for  149  elective  officers . 


347 


and  the  total  number  of  elective  officials  voted  for  in  Chicago  (ex- 
cluding presidential  electors)  is  425.4 

The  largest  ballots  in  Illinois  are  thus  to  be  found  in  the  City 
of  Chicago.  In  November,  1906,  the  ballot  measured  two  feet  and 
two  inches  by  eighteen  and  one-half  inches,  and  contained  334  names 
of  candidates.  At  the  election  in  November,  1912,  when  57  officials 
were  to  be  elected  (or  86  including  the  presidential  electors)  there  were 
six  party  tickets  containing  in  one  district  279  candidates  for  public 
office  and  174  candidates  for  presidential  electors, — a total  of  433 
names  on  the  ballot.  At  the  primary  election  in  1914,  there  were  382 
candidates  for  51  positions  on  the  democratic  ballot  in  one  district. 
There  were  19  candidates  for  State  Treasurer,  and  148  candidates  for 
the  10  county  commissioners  to  be  elected  in  the  city. 


See  pamphlet  on  Chicago  and  Cook  County. 


348 


III.  THE  BALLOT  IN  OTHER  STATES  AND  COUNTRIES. 


Long  Ballot  States.  Most  of  the  American  states  now  have  a 
numerous  list  of  elective  officers  and  a long  ballot ; but  in  few  of  them 
is  the  list  of  officers  on  the  ballot  so  long  as  in  Illinois.  The  num- 
ber of  elective  state,  district  and  county  officers  in  some  of  the  larger 
states  is  shown  in  the  following  table: 

Elective  officers: a 

Members 


State 

Officers 

Courts 

of 

Legis- 

lature 

County 

Officers 

Total 

New  York 

7 

4 

2 

6 

19 

Pennsylvania  

5 

6 

2 

11 

24 

Illinois  

12 

7 

4 

11 

3* 

Ohio  

6 

6 

2 

10 

24 

Missouri  

7 

6 

2 

15 

30 

Texas  

9 

6 

2 

5 

22 

California  

4 

2 

16 

31 

a Compiled  fvom  table  in  Massachusetts  Constitutional  Convention  Bulletin 
No.  10.  These  figures  show  the  normal  number  of  officials  to  be  voted  for  by 
each  voter,  and  do  not  take  into  account  the  special  conditions  in  particular  dis- 
tricts. 

It  will  be  noted  that  the  number  of  elective  state  officers  in 
Pennsylvania  and  Ohio  is  smaller  than  in  the  other  states.  In  Pennsyl- 
vania, the  Secretary  of  the  Commonwealth,  Attorney  General  and 
Superintendent  of  Public  Instruction  are  appointed  by  the  Governor. 
On  the  other  hand,  the  number  of  elective  county  officers  in  California 
and  Missouri  is  unusually  large,  and  in  New  York  and  Texas  is  com- 
paratively small.  But  none  of  these  can  be  considered  a short  ballot 
state;  and  most  of  the  other  states  have  a similar  list  of  elective  offi- 
cers. 

A few  illustrations  may  be  cited  of  long  ballots  in  some  of  these 
states.  At  the  gener^  election  in  1908,  the  ballot  in  Cleveland,  Ohio, 
contained  the  names  of  391  candidates  for  45  offices, — not  including 
the  23  presidential  electors.  In  1910,  there  were  210  candidates  for 
42  positions.  In  1911,  there  were  324  candidates  of  the  two  princi- 
pal parties  at  the  primary  election,  and  132  candidates  on  four  tickets 
for  40  offices  at  the  final  election  in  November.5  In  1916  there  were 
231  candidates  for  58  offices. 

One  of  the  longest  lists  of  names  on  an  election  ballot  was  that 
in  a New  York  city  democratic  primary,  before  the  introduction  of 


5 The  Need  of  a Short  Ballot  for  Ohio,  p.  8. 


349 


the  direct  primary,  which  contained  835  names  of  candidates  for 
delegates  to  nominating  conventions.6 


Shorter  Ballot  States  and  Cities : Some  states,  however,  have  a 
smaller  number  of  elective  officers  and  a shorter  ballot  than  is  the  gen- 
eral rule  in  the  United  States.  The  most  notable  instances  are  Massa- 
chusetts, Connecticut,  Maine,  New  Hampshire,  New  Jersey,  Rhode 
Island,  Tennessee  and  Vermont. 

In  Massachusetts,  all  the  judges  are  appointive,  and  there  are 
comparatively  few  elective  county  officials.  Town  elections  and  city 
elections  come  at  a different  date  from  the  state  and  national  elections. 
Nevertheless  there  are  six  state  officers  elected  at  large,  eight  council- 
lors elected  by  districts,  seven  elective  county  officers ; and  with  mem- 
bers of  the  state  legislature  and  congress,  there  are  about  twenty 
state  and  local  officials  to  be  elected, — about  twelve  at  one  election, — 
besides  presidential  electors  every  fourth  year.  State  officers  have  been 
elected  every  year ; but  by  constitutional  amendment  adopted  in  1918, 
they  will  be  chosen  for  two  year  terms  beginning  in  1920,  thus  re- 
ducing the  number  of  elections. 

Connecticut  and  Vermont  have  each  six  elective  state  officers ; 
in  Vermont  there  are  five  elective  county  officers  and  in  Connecticut 
only  two.  Including  members  of  the  legislature,  there  are  ten  elective 
officers  in  Connecticut  and  thirteen  in  Vermont,  other  than  municipal 
officials.  In  Rhode  Island  there  are  five  elective  state  officials ; but  the 
two  county  officials  (sheriff  and  court' clerk)  are  appointed,  so  that 
including  members  of  the  legislature  there  are  only  seven  officials  to 
be  voted  for  at  a general  state  election. 

In  four  states  the  governor  is  the  only  state  executive  officer  elected 
at  large, — Maine,  New  Hampshire,  New  Jersey  and  Tennessee.  In 
addition  there  are  elected  from  five  to  eight  county  officers  and  mem- 
bers of  the  legislature;  in  New  Hampshire  also  five  members  of  the 
council  elected  by  districts ; and  in  Tennessee  judges  of  the  supreme, 
circuit  and  chancery  courts.  In  New  Jersey,  the  two  most  important 
counties  each  elect  a number  of  members  of  the  legislature  on  a gen- 
eral ticket ; and  this  makes  a distinctly  long  ballot  in  these  counties. 

0 C.  A.  Beard:  The  Ballot’s  Burden,  in  Political  Science  Quarterly,  Vol.  24,  p. 

601.  (1909). 


350 


Elective  Officers  in  Short  Ballot  States 


Massachusetts 

Connecticut 

Rhode  Island 

Vermont 

Governor 

Governor 

Governor 

Governor 

Lieut.  Governor 
Secy,  of  the  Com- 

Lieut.  Governor 

Lieut.  Governor 

Lieut.  Governor 

monwealth 

Secretary  of  State 

Secy,  of  State 

Secy  of  State 

Treasurer 

Treasurer 

Controller 

Treasurer 

Treasurer 

Auditor 

Attorney  General 

Attorney  General 

Attorney  General 

Auditor 

Councillors 

Councillors 

Senators 

Senators 

Senators 

Senators 

Representatives 

Representatives 

Representatives 

Representatives 

County  Clerk 
Register  of  Wills 
Register  of  Deeds 

Clerk  of  Probate 

Probate  Judge 

Sheriff 

Sheriff 

Sheriff 

Attorney 

Attorney 

County  Comrs. 

Asst.  Judges 

County  Treasurer 

High  Bailiff 

Maine 

New  Hampshire 

New  Jersey 

Tennessee 

Governor 

Governor 

Councillors 

Governor 

Governor 

Supreme  Ct.  Judges 
Circuit  Judges 
Chancery  Judges 

Senators 

Senators 

Senators 

Senators 

Representatives 

Representatives 

Representatives 

Representatives 

Clerk  County  Court 
Register  of  Wills 

Register  of  Probate 

County  Clerk 
Surrogate 

Clerk  County  Court 

Register  of  Deeds 

Register  of  Deeds 

Register  of  Deeds 

Register  of  Deeds 

Sheriff 

Sheriff 

Sheriff 

Sheriff 

Attorney 
County  Comrs. 
County  Treasurer 
Probate  Judge 

Solicitor 
County  Comrs. 
County  Treasurer 

Coroner 
County  Board 

Attorney 

County  Treasurer 

The  somewhat  smaller  list  of  elective  officers  in  Massachusetts 
perhaps  explains  in  part  why  the  official  ballot  in  that  state  has  been 
from  the  beginning  made  up  on  the  “office  group”  rather  than  the 
“party  column”  plan.  Under  this  arrangement  each  voter  must  mark 
each  candidate  for  whom  he  wishes  to  vote,  and  can  not  by  a single 
mark  be  counted  as  voting  for  a party  ticket.  But  even  in  Massachu- 
setts, the  number  of  votes  for  the  less  important  offices  shows  a 
marked  reduction  from  that  for  the  principal  offices,  indicating  that 
many  voters  find  they  have  no  opinion  on  the  merits  of  candidates  for 
the  minor  offices. 

On  the  other  hand,  with  the  office  group  ballot,  a larger  proportion 
of  voters  express  their  personal  preference  as  between  different  candi- 
dates, instead  of  voting  for  party  tickets  as  a whole.  A study  of  the 
extent  of  “split  ticket”  voting  in  1904  showed  that  in  states  where 
each  candidate  had  to  be  separately  marked  on  the  ballot,  the  percent- 
age of  split  tickets  ranged  from  11.87  in  Rhode  Island  and  15  in  Massa- 


351 


chusetts  to  31.07  in  Minnesota;  while  in  Illinois  with  the  party  col- 
umn ballot  there  were  only  2.55  per  cent  of  split  ticket  votes.7 

Recent  city  charters  and  laws  in  the  United  States  have  in  many 
cases  reduced  the  number  of  elective  offices,  and  thus  provided  a short 
ballot  for  city  elections.  This  has  been  one  important  feature  of 
commission  government  for  cities,  where  the  elective  city  officers  are 
only  five  (sometimes  three)  commissioners  elected  at  large.  But  in 
many  of  these  cities  there  are  also  other  elective  municipal  officials, 
such  as  members  of  school  boards,  municipal  judges  and  (in  Illinois) 
town,  park  and  other  local  officers. 

Some  recent  mayor  and  council  governments  have  provided  for 
the  election  only  of  the  mayor,  one  alderman  at  a time  from  each  ward, 
and  the  school  board  and  municipal  judges.  In  Boston,  Massachusetts, 
where  all  judges  are  appointed,  the  charter  of  1909  provides  for  a 
mayor  elected  for  four  years,  nine  councilmen  elected  three  each  year, 
and  a school  board  of  five  of  which  one  or  two  are  elected  at  a time- 
making  only  from  four  to  six  places  to  be  filled  at  each  annual  city 
election. 

Further,  it  may  be  noted  that  in  the  national  government  of  the 
United  States  a short  ballot  system  is  established  by  the  constitution. 
The  only  elective  officers  are  the  President,  Vice  President,  and  mem- 
bers of  Congress ; and  the  constitution  further  definitely  provides  that 
other  offices  shall  be  filled  by  appointment,  and  prevents  any  addition 
to  the  number  of  national  officers  to  be  chosen  by  popular  election, 
and  any  appointment  of  officers  by  Congress. 

It  is  true  that  in  the  formal  process  of  electing  the  President 
and  Vice  President,  as  it  has  been  worked  out  by  the  several  states, 
the  presidential  electors  are  voted  for  directly ; and  that  in  many  of  the 
states  these  make  a considerable  addition  to  the  length  of  the  ballot. 
But  it  seems  clear  that  in  voting  for  presidential  electors,  the  voters 
cast  a vote  for  the  party  lists  because  their  intent  is  to  vote  for  the 
candidates  for  President  and  Vice  President,  and  very  seldom  distin- 
guish between  the  candidates  for  electors  on  the  same  ticket.  And  any 
state  may  provide,  as  some  have  done,  that  the  presidential  electors  on 
each  party  list  may  be  voted  for  by  a single  mark.  While  the  number 
of  elective  officers  for  any  one  class  of  offices  may  not  be  very  large,  the 
total  of  national,  state  and  local  officers  elected  at  one  election  makes  a 
long  ballot. 


The  Ballot  in  Other  Countries.  No  other  country  has  any- 
thing like  the  number  of  elective  offices  as  the  United  States ; and  the 
ballot  in  all  these  countries  is  much  shorter  and  simpler  than  in  this 
country.  In  practically  all  these  countries,  the  only  elective  officials 
are  the  members  of  representative  bodies ; and  all  executive  and  judi- 
cial officers  are  appointed. 

7 P.  T.  Allen:  Ballot  Laws  and  Their  Working,  Political  Science  Quarterly, 

Vol.  21,  pp.  38,  48,  (1906). 


352 


In  Great  Britain  members  of  the  House  of  Commons  are  for  the 
most  part  now  elected  by  single  member  districts.  In  a few  cases 
there  are  two  members  from  one  constituency.  Elections  for  the 
House  of  Commons  take  place  at  a different  time  from  other  elections : 
and  the  ballot  usually  contains  only  the  names  of  two  or  perhaps 
three  candidates  for  the  single  position.  Even  where  there  are  two 
members  to  be  elected,  the  ballot  will  seldom  contain  more  than  five  or 
six  names. 

In  local  elections  also,  members  of  county,  town  and  other  local 
councils  are  also  usually  elected  one  at  a time  from  each  district ; 
and  each  body  is  elected  at  a different  time.  In  consequence,  the  bal- 
lots at  each  election  usually  have  but  two  or  three  names. 

“The  mechanism  by  which  the  British  voter  controls  his  city 
government  is  a ballot  about  the  size  of  a post  card.  There  are  two 
names,  or  three,  on  it ; the  voter  selects  one.  To  make  up  his  mind 
on  that  simple  choice  is  the  whole  work  of  the  voter  in  the  campaign 
and  on  election  day.”8 

So,  too,  in  France,  members  of  the  Chamber  of  Deputies  have 
been  elected  by  single  member  districts ; and  even  with  a considerable 
number  of  parties  presenting  candidates,  the  ballot  has  seldom  con- 
tained more  than  five  or  six  names.  In  the  smaller  cities,  however, 
members  of  the  local  councils  are  elected  at  large;  and  in  these  cases 
the  ballots  are  longer.  For  the  chamber  of  deputies  the  recent  intro- 
duction of  proportional  representation  in  France  will  make  some 
change. 

In  some  European  countries  where  systems  of  proportional  repre- 
sentation  have  been  introduced,  several  members  of  representative 
bodies  are  elected  by  each  district ; and  in  these  cases,  the  ballot  is 
somewhat  longer,  especially  where  there  are  candidates  from  a number 
of  political  parties.  But  even  in  such  cases,  the  ballot  is  smaller  and 
less  complex  than  in  most  American  elections.  Even  with  five  or  six 
members  to  be  elected  from  a district  and  with  candidates  from  as 
many  as  half  a dozen  parties,  there  is  not  likely  to  be  more  than  a 
dozen  candidates. 


8 R.  S.  Childs;  Short  Ballot  Principles  p.  94. 


353 


IV.  CRITICISM  OF  THE  LONG  BALLOT. 


Many  criticisms  have  been  made  of  the  great  number  of  elective 
offices  and  the  length  and  complexity  of  the  ballot  in  the  United 
States.  Even  at  the  time  when  the  prevailing  tendency  was  strongly 
in  favor  of  popular  election  of  all  public  officials,  some  voices  were 
raised  in  opposition.  In  the  New  York  Constitutional  Convention  of 
1846,  Mr.  Simmons  said : 

“There  seems  to  be  a wonderful  charm  in  adding  names  to  the 
ticket.  The  complaint  in  his  county  was  that  there  were  so  many 
elective  officers — because  it  imposed  on  the  people  so  much  labor.  He 
heard  a gentleman  from  Clinton  County  say — and  he  lived  among  a 
very  intelligent  population  too — that  there  were  so  many  names  on  the 
town  ticket  now,  that  he  would  pledge  $100  that  he  could  get  his 
horse  elected  supervisor,  and  nobody  would  know  of  it.”9 

In  the  Illinois  Constitutional  Convention  of  1870,  Mr.  Hanna 
of  the  Tenth  District  (Wayne  and  Hamilton  Counties),  in  discussing 
the  system  of  township  organization  said: 

“There  ought  to  be  just  as  few  officers  as  the  people  can  get 
along  with.  This  state  is  as  badly  cursed  with  too  many  officers  as  by 
any  other  curse  attached  to  it.  In  the  county  I have  the  honor  of  repre- 
senting this  system  of  township  organization  has  made  about  165  new 
offices.  The  result  is  that  nobody  cares  about  the  business  he  is  ex- 
pected to  perform.”10 

About  the  same  time  the  following  criticism  appeared  in  the  North 
American  Review : 

“The  folly  of  obliging  the  people  to  decide  at  the  polls  upon  the 
fitngss  for  office  of  a great  number  of  persons  is  at  the  bottom  of  almost 
all  the  misgovernment  from  which  we  suffer,  not  only  in  the  cities  but 
in  the  states.  It  is  a darling  device  of  the  political  jobbers  and  a most 
successful  one ; for,  under  the  hollow  pretence  that  thus  the  people  have 
greater  power,  they  are  able  to  crush  public  spirit,  to  disgust-  decent 
and  conscientious  citizens  with  politics,  to  arrange  their  “slates”,  to 
mix  the  rascals  judiciously  with  a few  honest  men  wherever  public 
sentiment  imperatively  demands  that  much,  and  to  force  their  stacked 
cards  upon  the  people.”11 

A few  years  later  (in  1879)  Albert  Stickney  expounded  the 
doctrine  of  the  short  ballot  in  his  True  Republic ; and  similar  views 
have  been  presented,  among  others,  by  F.  W.  Dallinger  (now  Chair- 

9 Croswell  & Sutton’s  Debates  of  the  New  York  Constitutional  C onvention 

of  1846,  p.  390. 

10  Debates  and  Proceedings,  p.  876. 

n Charles  Nordhoff,  No.  Ameri.  Rev.  Vol.  113,  p.  327  (1870} 


354 


man  of  the  Elections  Committee  in  the  House  of  Representatives), 
in  his  book  on  N ominations  for  Public  O ffice , and  by  Charles  E.  Mer- 
riam,  in  his  work  on  Primary  Elections. 

The  extension  of  the  system  of  popular  election  was  made  as  part 
of  the  democratizing  movement,  in  the  belief  that  it  would  increase 
and  strengthen  the  popular  control  of  the  government.  But  it  has 
been  urged  that  it  has  in  fact  the  contrary  effect;  and  that  to  the 
extent  now  used  it  is  one  of  the  most  serious  obstacles  to  popular 
control  of  the  government. 

It  is  pointed  out  that  with  the  long  list  of  elective  officers  and  the 
longer  list  of  candidates  an  impossible  task  is  placed  on  the  voter. 
This  is  not  due  merely  to  the  limitations  of  ignorant  and  uneducated 
voters ; but  even  the  most  intelligent  and  educated  voter  finds  it  im- 
possible to  learn  for  himself  the  qualifications  and  merits  of  the  numer- 
ous candidates,  unless  by  giving  more  time  to  such  questions  than  can 
be  expected  of  any  but  those  who  make  a business  of  politics.  To  ex- 
amine even  briefly  the  relative  merits  of  two  or  three  sets  of  candi- 
dats  for  40  or  50  offices  to  be  voted  for  at  the  same  time,  at  the  rate 
of  half  an  hour  for  each,  would  require  the  working  time  of  one  or 
two  weeks  before  each  election. 

As  a result,  it  is  claimed  that  for  the  great  majority  of  voters, 
the  act  of  voting  has  become  unintelligent  and  mechanical ; and  that 
the  real  control  over  election  results  is  exercised  by  political  organi- 
zations of  various  kinds.  The  party  column  and  other  devices  by  which 
the  physical  labor  of  voting  for  a party  ticket  is  reduced  to  a mini- 
mum enables  a large  number  of  voters  to  decide  on  the  basis  of  their 
general  preference  as  between  parties ; but  such  straight  ticket  voters 
in  effect  abandon  to  the  party  the  political  privilege  which  the  law  has 
given  them. 

Even  voters  who  endeavor  to  discriminate  between  different 
candidates  can  make  no  careful  study  of  all  the  candidates,  and  are 
likely  to  be  guided  in  large  part  by  the  recommendations  of  voter’s 
leagues,  or  temporary  organizations  supporting  particular  candidates. 

Under  these  conditions,  it  is  said  that  public  officers  are  not  in- 
frequently elected  who  fail  to  represent  public  opinion ; and  that  offi- 
cers so  elected  are  in  no  effective  way  responsible  for  the  conduct  of 
their  offices. 

“The  task  of  the  voter  to  obtain  sufficient  information  about  candi- 
dates long  ago  passed  beyond  what  even  the  very  intelligent  citizen 
could  fulfill,  and  still  maintain  his  place  in  competitive  industry.  The 
result  is  that  the  voter,  though  extremely  intelligent  in  general,  comes 
to  the  polls  in  utter  ignorance  of  candidates  and  their  qualifications 
for  office.  * * * 

“The  elector,  by  being  required  to  vote  too  much,  has  been  com- 
pelled to  surrender  to  a large  extent  his  right  to  vote  at  all,  and  to  per- 
mit others  to  cast  his  vote  as  they  see  fit.  Formerly  people  were 
disfranchised  when  they  were  given  no  opportunity  to  vote.  Today 
they  are  disfranchised  by  being  required  to  vote  too  much”.12 


12 A.  M.  Kales:  Unpopular  Government,  Pt.  I,  Ch.  2- 


355 


The  difficulties  and  objections  arising  from  the  large  blanket  bal- 
lot in  Illinois  are  more  serious  in  Chicago  and  Cook  County  than  in 
other  parts  of  Illinois,  on  account  of  the  greater  complexity  of  local 
government  and  the  larger  number  of  elective  offices  in  the  metropoli- 
tan community.  But  even  in  other  parts  of  the  state,  the  problem  of 
intelligent  voting  at  the  November  elections  is  puzzling  for  the  ablest 
voter.  Outside  of  Chicago,  the  difficulties  caused  by  the  number  of 
separate  local  elections  are  greater  than  in  Chicago,  where  some  local 
elections  have  been  abolished  or  consolidated  with  others. 

It  has  been  further  pointed  out  that  even  with  the  large  number 
or  elective  offices,  there  is  now  a larger  number  of  appointive  positions ; 
that  many  of  the  appointive  offices  are  of  equal  or  greater  importance 
than  some  of  the  elective  offices ; and  that  there  is  no  sufficient  reason 
for  electing  the  latter  rather  than  the  former,  especially  as  the  work 
of  the  appointive  officers  is  at  least  as  well  done,  and  often  better,  than 
that  of  the  elective  officers.  The  work  of  the  National  Government, 
where  only  the  President,  Vice  President  and  members  of  Congress 
are  elected,  is  recognized  to  be  more  efficiently  done  and  to  be  more 
under  popular  control,  than  are  the  state  and  local  governments  with 
numerous  elective  officers.  And  in  recent  years,  the  betterment  of  mu- 
nicipal government  has  been  closely  connected  with  the  use  of  the 
short  ballot  end  the  introduction  of  more  responsible  systems  of  or- 
ganization. 


356 


V.  THE  SHORT  BALLOT  MOVEMENT. 


Short  Ballot  Principles.  To  meet  these  difficulties  and  criti- 
cisms there  has  developed  in  recent  years  an  active  demand  for  a 
“short  ballot”,  based  on  the  following  principles : 

(1)  That  only  those  offices  should  be  elective  which  are  import- 
ant enough  to  attract  (and  deserve)  public  attention; 

(2)  That  very  few  offices  should  be  filled  by  election  at  one  time, 
so  as  to  permit  adequate  and  unconfused  public  examination  of  the 
candidates. 

It  may  also  be  pointed  out  that  the  important  offices  which  re- 
ceive public  attention  are  also  the  offices  determining  public  policies 
which  should  reflect  the  will  of  the  people.  In  the  case  of  the  great 
number  of  policy  executing  offices,  the  general  public  is  primarily  con- 
cerned only  in  efficient  administration ; and  is  not  able  to  pass  judgment 
on  the  technical  qualifications  of  candidates  for  particular  positions  or 
their  comparative  degrees  of  efficiency. 


Indorsement  of  Principles.  These  short  ballot  principles  have 
been  publicly  indorsed  and  supported  by  some  of  the  most  prominent 
men  in  American  public  life,  in  different  political  parties — including 
all  of  the  three  latest  Presidents  of  the  United  States  (Roosevelt,  Taft, 
and  Wilson),  also  former  Governor  and  Justice  Hughes,  and  ex-Sena- 
tor  Elihu  Root.  The  following  quotations  set  forth  their  views : 

Governor  Hughes  of  New  York  in  his  annual  message  of  1910 
said : 

“There  should  be  a reduction  in  the  number  of  elective  offices. 
The  ends  of  democracy  will  be  better  attained  to  the  extent  that  the 
attention  of  the  voters  may  be  focused  upon  comparatively  few  offices, 
the  incumbents  of  which  can  be  strictly  accountable  for  administration. 
This  will  tend  to  promote  efficiency  in  public  office  by  increasing  the 
effectiveness  of  the  voter  and  by  diminishing  the  opportunities  of  po- 
litical manipulators  who  take  advantage  of  the  multiplicity  of  elec- 
tive officers  to  perfect  their  schemes  at  the  public  expense.  I am  in 
favor  of  as  few  elective  offices  as  may  be  consistent  with  proper  ac- 
countability to  the  people,  and  a short  ballot.  * * * It  would  be  an 

improvement,  I believe,  in  state  administration  if  the  executive  respon- 
sibility was  centered  in  the  governor,  who  should  appoint  a cabinet  of 
administrative  heads  accountable  to  him  and  charged  with  the  duties 
now  imposed  upon  elected  state  officers.”13 


13  Proceedings,  American  Political  Science  Association,  VI1,  96  (1909). 


357 


Woodrow  Wilson  has  strongly  advocated  the  short  ballot,  both  in 
his  earlier  writings  and  since  he  has  occupied  public  office.  In  an 
article  published  in  1910  he  wrote: 

“The  elective  items  on  every  voter’s  programme  of  duty  have 
become  too  numerous  to  be  dealt  with  separately  and  are,  consequently, 
dealt  with  in  the  mass  and  by  a new  system,  the  system  of  political 
machinery  against  which  we  futilely  cry  out.  * * * 

“The  short  ballot  is  the  short  and  open  way  by  which  we  can 
return  to  representative  government.  It  has  turned  out  that  the  meth- 
ods of  organization  which  lead  to  efficiency  in  government  are  also 
the  methods  which  give  the  people  control.”14 

Theodore  Roosevelt,  in  his  well  known  address  before  the  Ohio 
Constitutional  Convention,  in  February,  1912,  said: 

“I  believe  in  the  short  ballot.  You  can  not  get  good  service  from 
the  public  servant  if  you  can  not  see  him,  and  there  is  no  more  ef- 
fective way  of  hiding  him  than  by  mixing  him  up  with  a multitude  of 
others  so  that  they  are  none  of  them  important  enough  to  catch  the 
eye  of  the  average  workaday  citizen.  * * * The  professional  poli- 

tician and  the  professional  lobbyist  thrives  most  rankly  under  a system 
which  provides  a multitude  of  elective  officers  of  such  divided  respon- 
sibility and  of  such  obscurity  that  the  public  knows,  and  can  know, 
but  little  as  to  their  duties  and  the  way  they  perform  them.  The  people 
have  nothing  whatever  to  fear  from  giving  any  public  servant  power  so 
long  as  they  retain  their  own  power  to  hold  him  accountable  for  his  use 
of  the  power  they  have  delegated  to  him.  You  will  get  best  service 
where  you  elect  only  a few  men,  and  where  each  man  has  his  definite 
duties  and  responsibilities,  and  is  obliged  to  work  in  the  open,  so  that 
the  people  know  who  he  is  and  what  he  is  doing,  and  have  the  infor- 
mation that  will  enable  them  to  hold  him  to  account  for  his  steward- 
ship.”15 

Elihu  Root,  in  an  address  at  Princeton  University,  said: 

“Our  ballots  are  already  too  complicated.  The  great  blanket 
sheets  with  scores  of  officers  and  hundreds  of  names  to  be  marked  are 
quite  beyond  the  intelligent  action  in  detail  of  nine  men  out  of  ten. 

“The  most  thoughtful  reformers  are  already  urging  that  the 
voter’s  task  be  made  more  simple  by  giving  him  fewer  things  to 
consider  and  act  upon  at  the  same  time. 

“This  is  the  substance  of  what  is  called  the  short  ballot  reform ; 
and  it  is  right,  for  the  more  questions  divided  public  attention  the 
fewer  questions  the  voters  really  decide  for  themselves  on  their  own 
judgment  and  the  greater  the  power  of  the  professional  politician.”16 

Ex-President  William  H.  Taft  has  said : 

“I  have  the  fullest  sympathy  with  every  reform  in  government 
and  election  machinery,  which  will  facilitate  the  expression  of  the 

14  Hide  and  Seek  Politics,  North  American  Review,  May,  1910.  See  also 
address  on  Civic  Problems,  at  St.  Louis,  March  9,  1909. 

15  T.  Roosevelt,  Progressive  Principle  p.  63  (1913). 

18  Elihu  Root  on  Experiments  in  Government,  Addresses  ori  Government  and 
Citizenship,  p.  96. 


358 


popular  will,  such  as  the  short  ballot  and  the  reduction  of  elective 
offices.” 


State  Governors.  Many  state  governors  have  advocated  the 
centralization  of  responsibility  and  the  short  ballot,  with  special  refer- 
ence to  state  executive  offices.  As  early  as  1872,  Governor  Hoffman 
of  New  York  urged  that : 

“The  governor  ought  to  be  held  responsible  for  every  branch  of 
the  actual  administration  of  the  state  affairs.  Under  our  present  con- 
stitution, all  the  important  departments  are  separated  from  his  con- 
trol. * * * In  order  that  responsibility  may  be  full,  direct  and 

unmistakably  fixed,  and  that  the  people  may  always  know  who  is  to 
blame  for  any  maladministration,  all  the  heads  of  administrative  de- 
partments should  be  subject  to  the  supervision  and  correcting  power 
of  the  governor.” 

Similar  views  were  presented  by  Governor  Cleveland  (1883-4)  of 
New  York;  and  Governor  William  E.  Russell  of  Massachusetts  in 
1892  pointed  out  that  the  governor  in  that  state  had  no  effective  con- 
trol over  the  state  administration.  In  1904  Governors  Bates  of  Massa- 
chusetts and  Garvin  of  Rhode  Island  favored  fixing  responsibility  on 
the  governor  by  giving  him  the  power  of  appointing  the  principal  heads 
of  departments. 

During  the  last  decade  the  state  governors  have  taken  up  this 
question  more  actively,  and  in  their  messages  to  the  legislatures  and  the 
annual  conferences  of  governors,  the  short  ballot  has  been  publicly 
indorsed  by  the  governors  of  more  than  three-fourths  of  the  states, 
including  the  following: 

Alabama,  (Governor  McNeal) 

Arkansas,  (Governor  Brough,  1917) 

California,  (Governor  Johnson,  1913) 

Colorado,  (Governor  Ammon,  1913  and  1915) 

Idaho,  (Governor  Alexander,  1915;  Davis,  1919) 

Illinois,  (Governor  Dunne,  1913  and  1915;  Lowden,  1917  and 
1919) 

Indiana,  (Governor  Goodrich,  1919) 

Iowa,  (Governor  Clarke,  1913  and  1915) 

Kansas,  (Governor  Capper,  1915  and  1917) 

Massachusetts,  (Governors  Walsh  and  McCall,  1915) 

Michigan,  (Governor  Ferris,  1913  and  1915) 

Minnesota,  (Governor  Burnquist,  1915  and  1919) 

Nebraska,  (Governor  Morehead,  1913;  Neville,  1917) 

Nevada,  (Governor  Boyle,  1915  and  1919) 

New  Hampshire,  (Governor  Keyes,  1917) 

New  Jersey,  (Governor  Fielder,  1915) 

New  York,  (Governor  Sulzer,  1913  and  1915;  Smith,  1919) 
North  Carolina,  (Governor  Craig,  1915;  Bickett,  1917  and  1919) 
North  Dakota,  (Governor  Hanna,  1913  and  1915;  Frazier,  1919) 


359 


Ohio,  (Governor  Cox,  1913  and  1915) 

Oklahoma,  (Governor  Williams,  1915) 

Oregon,  (Governor  Wythecombe,  1915) 

South  Dakota,  (Governor  Norbeck,  1917) 

Tennessee,  (Governor  Rye,  1915) 

Vermont,  (Governor  Clement,  1919) 

Washington,  (Governor  Lister,  1913  and  1915) 

West  Virginia,  (Governor  Hatfield,  1915) 

Wisconsin,  (Governor  McGovern,  1915;  Phillip,  1917) 

Wyoming,  (Governor  Carey,  1913). 

Governor  Dunne,  in  his  message  to  the  Illinois  General  Assem- 
bly in  1913,  stated : 

“Some  effort  should  be  made  to  shorten  the  ballot  of  the  elector. 
“It  has  become  so  cumbersome  and  heavily  loaded  with  names 
of  candidates,  particularly  in  the  large  cities,  that  even  the  most  en- 
lightened citizen  is  incapable  of  exercising  an  intelligent  selection 
in  the  choice  of  some  candidates.  * * * 

“At  final  elections  the  only  way  of  shortening  the  ballot  is  to 
cut  down  the  number  of  elective  offices. 

“This  can  safely  be  done  in  many  cases.  Many  public  corpor- 
ate bodies  are  now  too  large  and  unwieldy,  and  the  individual  mem- 
bers, by  reason  thereof,  are  less  individually  responsible  to  the  peo- 
ple. 

“I  respectfully  intrust  to  your  favorable  consideration  the  sub- 
ject matter  of  shortening  the  ballot  to  be  voted  upon  by  the  people, 
both  at  primary  and  final  elections. 

“All  judicial  officers  should  be  voted  for  at  a time  when  no  state, 
county,  city  or  village  officers  are  being  elected.  This  in  itself  would 
shorten  the  ballot  as  voted  under  present  conditions.” 

At  the  Governors’  Conference  of  1916,  Governor  Dunne  said: 

“I  am  in  hearty  accord  with  the  views  of  every  gentlemen  who 
has  been  heard  on  this  matter,  to  the  effect  that  the  attorney  general, 
the  adjutant  general,  treasurer  and  auditor,  who  are  simply  admini- 
strative officers,  ought  to  be  appointed  by  the  governor,  who  is 
charged  with  the  responsibility  of  the  management  of  the  affairs  of 
the  state ; and  that  a system  which  permits  these  officers  to  be  elected 
in  contra-distinction  to  the  right  of  the  governor  to  appoint  them  is 
a mistake  and  a failure,  and  has  so  operated  in  the  state  of  Illinois, 
as  well  as  in  other  states.”17 

Governor  Lowden,  in  his  message  of  1917,  stated: 

“Students  of  our  government  have  gradually  come  to  the  view 
that  we  must  have  fewer  elective  offices  if  democracy  is  to  be  made 
workable  and  efficiency  attained.  Diffusion  of  power  does  not  safe- 
guard against  official  abuse,  as  was  once  thought,  but  only  disguises 
it.  Responsibility  must  be  concentrated  so  that  the  people  may  know 
who  is  to  blame  if  that  responsibility  is  not  met,  but  the  short  ballot  is 
impossible  under  our  present  constitution. 


17  Proceedings  of  the  Governor’s  Conference,  1916,  p.  77. 


SCO 


“And  let  it  be  remembered  that  the  short  ballot  is  not  an  innova- 
tion. It  is  but  a return  to  the  form  of  the  federal  constitution,  and 
that  constitution  reposes  all  of  the  executive  power  in  a single 
individual  and  provides,  on  the  executive  side  of  the  government,  only 
for  the  election  of  a president  and  a vice-president.  The  need  for  this 
reform  was  never  so  great  as  it  is  under  our  present  primary  election 
laws.  The  people  will  not  take  time  to  consider  the  qualification  of  the 
vast  number  of  candidates  upon  whom  they  are  now  compelled  to 
pass.  Their  minds  are  centered  upon  a few  officials,  and  they  ought 
to  have  the  right  when  they  have  selected  these  officials,  to  hold  them 
responsible  for  the  administration  of  their  affairs.  Therefore  I 
strongly  urge  prompt  adoption  by  the  general  assembly  of  a reso- 
lution calling  a constitutional  convention.” 


Short  Ballot  Proposals.  More  definite  and  formal  proposals 
and  plans  for  the  reorganization  of  state  government,  based  on  short 
ballot  .principles,  have  been  presented  in  recent  years  in  a considerable 
number  of  states.  In  some  states  significant  changes  have  been  already 
accomplished. 

Beginning  with  New  Jersey  in  1912,  special  commissions,  com- 
mittees or  other  agencies  have  been  set  up  in  a dozen  or  more  states 
to  make  a systematic  study  of  state  administration  and  to  recommend 
plans  for  more  efficient  and  economical  management  of  state  affairs. 
The  general  policy  favored  in  all  these  cases  has  been  a reorganization 
and  consolidation  of  state  offices  and  boards,  into  a correlated  sys- 
tem, under  the  direction  of  the  governor.  In  a number  of  cases, 
as  in  the  report  of  the  Illinois  Efficiency  and  Economy  Committee, 
and  the  Minnesota  Commission,  the  detailed  recommendations  have 
been  limited  to  changes  which  could  be  made  by  statute;  and  have 
not  covered  the  elective  state  officers  established  by  the  state  con- 
stitution. But  even  in  these  cases  the  underlying  principles  of  the 
plans  proposed  affect  the  elective  officers ; and  complete  reorganiza- 
tion will  involve  the  short  ballot. 

In  several  cases,  however,  the  plans  submitted  have  definitely 
recommended  a reduction  in  the  number  of  elective  offices.  The 
report  of  the  Iowa  committee  on  retrenchment  and  reform,  in  1914, 
proposed  to  organize  three  main  divisions  of  state  administration, 
which  should  absorb  the  statutory  functions  of  the  elective  constitu- 
tional state  officers — the  Secretary  of  State,  the  State  Treasurer  and 
the  Auditor — with  the  purpose  of  ultimately  abolishing  these  offices 
by  constitutional  amendment  and  transferring  their  remaining  func- 
tions to  the  three  main  divisions.  This  policy,  the  committee  stated, 
would  “not  only  concentrate  authority  in  the  governor — as  the  ap- 
pointing power”,  and  eliminate  “the  division  of  authority  now  pre- 
vailing, but  would  shorten  a badly  encumbered  ballot,  thus  making 
for  simplified  government.” 

In  Oregon  a comprehensive  scheme  for  the  reorganization  of 
state  government  has  been  formulated  and  discussed  since  1909.  Un- 


361 


der  this  plan  it  is  proposed,  besides  fundamental  changes  in  legisla- 
tive organization,  to  abandon  the  direct  election  of  executive  officers, 
except  the  governor  and  auditor.  The  governor  would  appoint  the 
principal  department  heads,  and  also  a State  Business  Manager.  Parts 
of  this  plan  have  been  submitted  to  popular  vote,  by  initiative  peti- 
tion, at  several  elections ; but  as  yet  it  has  not  been  adopted. 

A constitutional  commission  appointed  in  New  York  in  1872 
recommended  an  amendment  for  the  appointment  of  the  Secretary 
of  State,  Attorney  General  and  State  Engineer  in  that  State.  In  the 
proposd  revised  constitution  for  the  state  of  New  York,  submitted 
by  the  constitutional  convention  in  1915,  provision  was  made  for 
consolidating  the  state  administration  into  17  civil  departments,  the 
heads  of  which  were  to  be  appointed  by  the  governor,  except  the 
Attorney  General  and  Comptroller.  This  would  have  shortened  the 
ballot  in  that  state  by  eliminating  the  elective  offices  of  Secretary 
of  State,  Treasurer  and  State  Engineer.  This  plan  was  approved  in 
the  Convention  by  a vote  of  125  to  30  (Republicans  97  to  15,  Demo- 
crats 28  to  15).  But  the  new  constitution  as  a whole  was  not  ratified 
by  popular  vote. 

A survey  of  state  and  local  government  in  Delaware,  presented 
to  the  legislature  by  Governor  Townsend  in  1919,  reports  plans  for 
short  ballot  state  and  county  governments. 

In  Illinois  the  short  ballot  principle  has  received  a broad  popu- 
lar indorsement  in  the  vote  on  a public  policy  question  presented  in 
1912,  asking  for  the  appointment  of  a commission  to  present  definite 
plans  for  establishing  the  short  ballot  in  this  state.  This  question  re- 
ceived an  affirmative  vote  of  508,780  to  165,270  against. 


Arguments  against  the  Short  Ballot.  In  the  New  York  Con- 
stitutional Convention  of  1915,  the  short  ballot  proposal  was  sup- 
ported among  others  by  Elihu  Root,  President  of  the  Convention ; 
F.  C.  Tanner,  Chairman  of  the  Republican  State  Committee H.  L. 
Stimson,  former  Secretary  of  War;  Seth  Low,  former  Mayor  of 
New  York  City;  G.  W.  Wickersham,  former  Attorney  General  of 
the  United  States ; R.  F.  Wagner,  Democratic  leader ; and  A.  E. 
Smith,  now  Governor  of  New  York  State.  The  leading  opponents 
were  W.  S.  Ostrander,  L.  E.  Quigg,  State  Senator  E.  T.  Brackett 
and  Excise  Commissioner  George  E.  Green. 

From  the  addresses  in  the  New  York  Convention,  the  arguments 
against  the  short  ballot  may  be  summarized  as  follows:  To  reduce 

the  number  of  elective  offices  will  be  undemocratic  and  deprive  the 
people  of  self  government ; to  add  to  the  appointive  power  of  the 
governor  will  mean  a dangerous  increase  of  political  patronage  and 
control  over  the  government ; and  this  movement  is  a revival  of  the 
old  system  of  autocratic  rule  and  a step  toward  absolute  government. 
It  was  urged  that  the  general  criticisms  of  the  long  ballot  were  due  to 
the  introduction  of  the  direct  primary  and  the  recently  established 


362 


“office  group”  ballot,  and  that  the  party  column  ballot  with  the  single 
mark  for  a party  ticket  provided  a short  ballot  for  those  who  wished 
it.  It  .was  further  said  that  the  phrase  “short  ballot”  was  mis- 
understood ; that  many  people  supposed  it  meant  merely  the  physical 
size  of  the  ballot  paper,  and  that  when  it  was  explained  that  it  meant 
reducing  the  number  of  elective  offices  the  people  were  opposed  to  it. 

In  reply  to  these  arguments,  those  in  favor  of  the  proposals  be- 
fore the  convention  presented  the  criticisms  previously  noted  of  the 
long  ballot  system,  and  the  need  for  a more  systematic  and  responsible 
government.  During  this  debate,  Mr.  Root  in  support  of  the  pro- 
posed provisions  made  his  now  well  known  address  on  “Invisible 
Government”,  from  which  the  following  quotations  may  be  made: 

“What  is  the  government  of  this  State?  What  has  it  been  dur- 
ing the  forty  years  of  my  acquaintance  with  it?  The  government 
of  the  constitution  ? Oh,  no ; not  half  the  time,  or  half  way.  When 
I asked  what  did  the  people  find  wrong  in  our  state  government,  my 
mind  goes  back  to  those  periodic  fits  of  public  rage  in  which  the 
people  rouse  up  and  tear  down  the  political  leader,  first  of  one  party 
and  then  of  the  other  party.  It  goes  on  to  the  public  feeling  of 
resentment  against  the  control  of  party  organizations,  of  both  parties 
and  of  all  parties.  Now,  I treat  this  subject  in  my  own  mind  not  as 
a personal  question  to  any  man.  I am  talking  about  the  system. 
* * * 

“They  call  the  system — I don’t  coin  the  phrase,  I adopt  it  because 
it  carries  its  own  meaning — the  system  they  call  “invisible  govern- 
ment. * * * 

“The  ruler  of  the  State  during  the  greater  part  of  the  forty 
years  of  my  acquaintance  with  the  State  government  has  not  been 
any  man  authorized  by  the  Constitution  or  by  the  law,  and,  sir,  there 
is  throughout  the  length  and  width  of.  this  State  a deep  and  sullen 
and  long-continued  resentment  at  being  governed  thus  by  men  not 
of  the  people’s  choosing.  The  party  leader  is  elected  by  no  one, 
accountable  to  no  one,  bound  by  no  oath  of  office,  removable  by  no 
one.  Ah ! My  friends  here  have  talked  about  this  bill’s  creating  an 
autocracy.  The  word  points  with  admirable  facility  the  very  op- 
posite reason  for  the  bill.  It  is  to  destroy  autocracy  and  restore 
power  so  far  as  may  be  to  the  men  elected  by  the  people,  accountable 
to  the  people,  removable  by  the  people.  * * * 

“How  is  it  accomplished?  How  is  it  done?  Mr.  Chairman, 
it  is  done  by  the  use  of  patronage,  and  the  patronage  that  my  friends 
on  the  other  side  of  this  question  have  been  arguing  and  pleading  for 
in  this  Convention  is  the  power  to  continue  that  invisible  govern- 
ment against  that  authorized  by  the  people.  * * * 

“Mr.  Chairman,  that  system  finds  its  opportunity  in  the  division 
of  powers,  in  a six-headed  executive,  in  which,  by  the  natural  work- 
ings of  human  nature  there  shall  be  opposition  and  discord  and  the 
playing  of  one  force  against  the  other,  and  so,  when  we  refuse  to  make 
one  governor  elected  by  the  people  the  real  chief  executive,  we 
make  inevitable  the  setting  up  of  a chief  executive  not  selected  hy 


363 


the  people,  not  acting  for  the  people’s  interest,  but  for  the  selfish 
interest  of  the  few  who  control  the  party,  whichever  party  it  may 
be.  * * * 

“I  assert  that  this  - perversion  of  democracy,  this  robbing  de- 
mocracy of  its  virility,  can  be  changed  as  truly  as  the  system  under 
which  Walpole  governed  the  commons  of  England,  by  bribery,  as  truly 
as  the  atmosphere  which  made  the  credit  mobilier  scandal  possible 
in  the  Congress  of  the  United  States  and  has  been  blown  away  by 
the  force  of  public  opinion.  We  can  not  change  it  in  a moment,  but 
we  can  do  our  share.  We  can  take  this  one  step  towards,  not  robbing 
the  people  of  their  part  in  government,  but  toward  robbing  an  irre- 
sponsible autocracy  of  its  indefensible  and  unjust  and  undemocratic 
control  of  government,  and  restoring  it  to  the  people  to  be  exercised 
by  the  men  of  their  choice  and  their  control.”18 


Results  Attained.  In  several  states  changes  have  recently  been 
adopted  which  shorten  the  ballot  at  elections.  In  Pennsylvania,  at 
each  quadrennial  state  election  each  elector  may  vote  for  governor, 
lieutenant  governor  and  three  other  state  officers,  for  a United  States 
senator  and  a representative  in  Congress,  and  for  a state  senator 
and  representative  in  the  general  assembly — a total  of  nine.  Two 
years  later  are  elections  for  presidential  electors,  and  members  of  Con- 
gress and  state  legislature.  By  amendment  to  the  state  constitution 
adopted  in  1909,  county  and  municipal  officers  and  district  judges  are 
elected  in  November  of  the  odd-numbered  years,  and  these  elections 
are  thus  separated  from  the  state  and  congressional  elections. 

Ohio  has  recently  removed  from  the  list  of  elective  state  officials 
the  Public  Works  Commissioner,  the  Dairy  and  Food  Commissioner, 
and  the  State  Commissioner  of  Common  Schools,  replacing  the  lat- 
ter by  a Superintendent  of  Public  Instruction  appointed  by  the  Gov- 
ernor. A proposed  constitutional  amendment,  submitted  in  1913,  for 
the  appointment  of  the  Secretary  of  State,  Auditor,  Treasurer  and 
Attorney  General,  was  defeated.  Iowa  has  ceased  to  elect  the  clerk  of 
its  Supreme  Court.  In  California  the  Railroad  Commissioners,  the 
State  Printer  and  the  clerk  of  the  Supreme  Court  have  been  removed 
from  the  ballot. 

In  1917  the  ballot  of  Nebraska  was  shortened  by  eliminating  the 
names  of  presidential  electors.  After  the  election  in  presidential  years 
the  governor  is  in  this  state  authorized  to  appoint  eight  electors  of 
the  party  that  carried  the  state. 

Indiana,  in  1919,  abolished  the  elective  offices  of  State  geologist 
and  State  statistician ; and  constitutional  amendments  have  been  pro- 
posed for  the  appointment  of  the  Superintendent  of  Public  Instruc- 
tion and  the  clerks  of  the  Supreme  and  Appellate  Courts. 


18  Elihu  Root,  in  New  York  Constitutional  Convention,  1915. 


364 


VI.  SPECIFIC  PROBLEMS. 


While  the  general  principles  of  the  short  ballot  have  been  widely 
indorsed,  there  is  more  difficulty  in  reaching  an  agreement  as  to  the 
application  of  these  principles  to  the  government  of  the  state  and 
local  districts.  If  the  general  policy  is  approved  by  the  Illinois  Con- 
stitutional Convention,  the  discussion  and  decision  as  to  methods  of 
working  out  the  policy  will  be  one  of  the  most  important  and  serious 
tasks  before  the  convention.  Without  attempting  to  solve  these  prob- 
lems, it  seems  desirable  to  set  forth  some  of  the  specific  questions 
which  have  arisen,  and  to  indicate  some  of  the  factors  to  be  con- 
sidered and  solutions  which  have  been  suggested. 

The  application  of  short  ballot  principles  affects  a good  many  dif- 
ferent organs  of  government,  which  will  be  considered  in  various  other 
pamphlets  prepared  for  the  Illinois  Constitutional  Convention.  What 
will  be  presented  here  will  be  merely  a brief  summary  of  the  problems 
connected  with  these  several  organs  which  are  directly  related  to  the 
question  of  the  short  ballot. 


State  Executive  Officers.  With  reference  to  the  executive  and 
administrative  officers  for  the  state  at  large,  the  governor  may  be 
made  the  only  elective  state  officer,  as  is  the  case  in  Maine,  New 
Hampshire  and  New  Jersey,  by  providing  for  the  appointment  of 
other  state  executive  officers.  In  this  way  the  ballot  for  state  offi- 
cers would  be  reduced  to  a minimum  of  one. 

The  first  exception  which  inevitably  presents  itself  for  consider- 
ation is  as  to  the  lieutenant  governor.  It  may  be  assumed  that  if  this 
office  is  retained,  it  will  be  continued  as  an  elective  office.  But  it  may 
be  noted  that  several  states  do  not  have  this  office ; and  the  question  has 
been  raised  as  to  the  need  for  an  officer  whose  main  function  is  to 
fill  a vacancy  in  another  position.  It  has  been  pointed  out  that  Vice 
Presidents  of  the  United  States  and  Lieutenant  Governors  of  the 
States  have  usually  represented  a somewhat  different  element  or  point 
of  view  from  the  President  and  the  Governors ; and  that  a change  of 
policy  is  more  likely  to  arise  when  the  chief  executive  is  succeeded 
by  such  an  official  than  if  he  were  succeeded  by  an  officer  appointed 
by  himself.  The  problem  to  be  decided  in  this  matter  is  as  to  the 
need  for  the  separate  office  of  lieutenant  governor. 

A second  exception  commonly  advocated  is  as  to  the  State  Audi- 
tor, or  Comptroller  as  he  is  called  in  some  states.  It  is  urged  that 
the  duties  of  this  officer  are  primarily  to  act  as  a check  on  the  expendi- 
tures of  the  executive  officials ; and  that  for  this  reason  it  is  essential 


365 


that  he  should  be  independent  of  the  chief  executive.  In  reply  it  has 
been  pointed  out  that  in  the  United  States  National  Government  the 
Comptroller  of  the  Treasury  and  the  Auditors  are  appointed  by  the 
President  of  the  United  States ; and  a similar  arrangement  is  pro- 
vided in  some  cities,  as  in  Chicago.  The  accounting  and  auditing  work 
in  the  national  government  and  in  these  cities  appears  to  be  as 
efficiently  performed  as  in  states  and  cities  with  elective  auditors. 

A method  of  securing  the  independence  of  the  Auditor  from  the 
Governor  without  direct  election  is  that  followed  in  New  Jersey 
and  Tennessee,  where  this  officer  is  not  electd  by  popular  vote,  but 
is  chosen  by  the  legislature.  This  arrangement  is  based  on  the  view 
that  his  primary  function  is  to  act  as  agent  of  the  legislature  to  insure 
that  expenditures  by  the  executive  are  kept  within  the  provisions 
of  the  appropriations.  But  it  may  be  questioned  whether  this  now 
represents  the  most  important  duties  of  this  office. 

If  the  auditor  is  to  remain  a popularly  elected  officer,  the  sug- 
gestion may  be  made  that,  in  order  to  insure  his  independence  of 
the  governor,  he  be  not  elected  at  the  same  time  as  the  governor,  but 
perhaps  at  the  intervening  biennial  election.  If  the  auditing  function 
is  to  be  a check  on  the  executive  departments,  it  will  probably  also  be 
suggested  that  the  auditor  have  no  other  function  than  that  of  exer- 
cising such  a check.  Under  the  present  system  in  Illinois  the  auditor 
is  responsible  for  the  audit  of  his  own  expenses  with  respect  to  the 
supervision  of  banks. 

It  may  further  be  noted  that  in  most  American  governments  one 
result  of  placing  the  control  over  disbursements  in  the  hands  of  an 
official  theoretically  independent  of  the  executive  has  been  that  there 
is  in  fact  no  real  independent  examination  of  the  accounts  and  finan- 
cial reports.  The  State  Auditor  is  supposed  to  be  both  accountant 
and  auditor.  The  experience  of  European  governments  indicates 
that  the  accounting  system  and  the  detailed  control  over  disburse- 
ments may  well  be  carried  on  by  a branch  of  the  executive  administra- 
tion, provided  there  is  a subsequent  audit  of  the  accounts  by  an  inde- 
pendent agency.  In  Great  Britain,  this  current  check  on  disburse- 
ments is  performed  by*  the  Treasury;  while  the  work  of  the  Comp- 
troller and  Auditor  General  is  to  make  a critical  study  of  the  com- 
pleted financial  accounts,  methods  and  reports  at  the  end  of  the  fiscal 
year.  In  Illinois,  the  main  control  over  disbursements  of  officers  ap- 
pointed by  the  Governor  was  for  many  years  exercised  by  the  Gover- 
nor’s auditor,  and  is  now  vested  in  the  department  of  finance,  estab- 
lished by  the  civil  administrative  code  in  1917. 

In  New  York  the  question  of  the  election  or  appointment  of  the 
Attorney-General  has  been  given  special  attention.  This  question  was 
discussed  in  the  New  York  Constitutional  Convention  of  1867;  and 
a provision  for  the  appointment  of  the  Attorney  General  was  barely 
defeated  by  a vote  of  54  to  56.  The  New  York  constitutional  com- 
mission of  1872  recommended  the  appointment  of  the  Attorney  Gen- 
eral.19 


19  Lincoln;  Constitutional  History  of  New  York,  Vol.  II. 


366 


The  question  was  again  discussed  in  the  constitutional  convention 
of  1915.  It  was  urged  on  the  one  hand  that  as  legal  adviser  to  the 
governor  and  as  the  officer  in  charge  of  proceedings  to  enforce  the 
law,  it  was  especially  important  that  he  should  work  in  harmony  with 
the  governor  whose  duty  it  is  to  execute  the  law.  It  was  pointed  out 
that  when  an  attorney  general  had  been  elected  of  another  political 
party  than  the  governor,  special  counsel  had  been  provided  for  the 
governor.  On  the  other  hand,  it  was  argued  that  the  attorney  gen- 
eral’s functions  as  prosecutor  (especially  in  the  case'  of  other  public 
officials)  was  political  in  nature ; but  it  is  not  clear  why  this  func- 
tion should  be  independent  of  the  Governor,  whose  duty  it  is  to  see 
that  the  laws  are  executed.  Though  not  openly  set  forth,  there  was 
also  some  opposition  on  account  of  the  recollection  of  the  situation 
at  the  time  of  Governor  Sulzer’s  impeachment  trial,  when  the  at- 
torney general  had  advised  the  other  state  officers  to  recognize  the 
lieutenant  governor  as  acting  governor. 

President  Taft  spoke  before  the  convention  committee  in  favor 
of  the  appointment  of  the  attorney  general  as  follows: 

“Well,  if  you  are  going  to  have  a lot  of  independent  officers,  who 
are  running  their  own  boats,  paddling  their  own  canoes,  without  re- 
spect to  the  head  of  the  state,  then  of  course  you  want  a judicial  offi- 
cer to  decide  between  them.  But  if  you  are  running  a government 
on  the  basis  of  a head  man  being  responsible  for  what  is  done,  and 
for  the  work  being  done  in  most  effective  way,  then  what  you  want 
is  a counsel.  When  you  consult  a lawyer,  you  don’t  consult  a judge. 
You  consult  a man  who  is  with  you,  seeking  to  help  you  carry  out 
the  lawful  purposes  that  you  have.  Therefore  he  ought  to  be  your 
appointee.  You  select  him.  Now  the  chief  executive  is  given  an 
attorney  general  to  advise  and  represent  him  in  all  legal  matters.  I 
don’t  see  why  he  shouldn’t  be  appointed.  It  would  be  most  awk- 
ward if  he  was  not,  in  Washington,  I can  tell  you  that.”20 

The  proposed  constitution  submitted  by  the  New  York  conven- 
tion of  1915  continued  the  attorney  general  as  an  elective  officer,  al- 
though making  appointive  some  of  the  other  officers  formerly  elected. 
On  the  other  hand  it  may  be  noted  that  in  the  Pennsylvania  con- 
vention of  1872,  a motion  to  make  the  attorney  general  elective  was 
defeated,  without  discussion.21 

The  situation  in  Illinois  is  affected  by  the  decision  of  the  Su- 
preme Court  that  the  attorney  general  is  the  chief  law  officer  of  the 
state,  and  that  appropriations  to  other  officers  and  boards  for  legal 
services  and  attorneys’  fees  are  invalid.22  Under  this  decision,  all 
legal  advice  and  services  in  prosecuting  offenders  for  all  branches  of 
the  state  administration  must  be  performed  through  the  attorney 
general’s  office.  An  elected  attorney  general  not  in  harmony  with  the 
governor  could  in  Illinois  seriously  affect  the  administration  of  laws 
relating  to  the  officials  appointed  by  and  responsible  to  the  governor. 


20  New  York  Constitutional  Convention  documents  No.  11  (1915). 

21  Debates  of  the  Constitutional  Convention  of  Pennsylvania,  1872,  II,  350-351. 

22  Fergus  v.  Russel,  270  111.  304,  343  (1915). 


367 


Election  of  Judges.  Assuming  that  the  elective  system  will 
be  retained  for  judges  in  Illinois,  separate  judicial  elections  are  im- 
portant, both  as  a means  of  keeping  down  the  length  of  the  ballot  and  to 
reduce  the  influence  of  partisan  factors  in  these  elections.  For  judges 
of  the  Supreme  Court  elected  by  districts,  and  Circuit  judges  (out- 
side of  Cook  County),  the  total  number  to  be  voted  for  in  each  dis- 
trict at  a separate  judicial  election  is  not  excessive.  Indeed  the  elec- 
tion of  other  judges  now  chosen  at  general  elections  might  well  be 
transferred  to  the  time  of  the  judicial  elections  in  June. 

In  Cook  County,  however,  the  number  of  judges  is  so  large  that 
the  judicial  elections  alone  involve  a long  and  cumbersome  ballot. 
There  are  now  40  circuit  and  superior  court  judges  for  Cook  County, 
and  if  the  election  of  municipal  court  judges  were  transferred  to  the 
same  election,  there  would  be  70  to  elect.  To  meet  conditions  of  this 
sort  a plan  has  been  proposed  by  the  American  Judicature  Society  for 
the  election  of  a chief  justice  for  a comparatively  short  term,  who  shall 
appoint  the  other  judges  for  longer  terms,  so  that  not  more  than  one- 
half  of  the  judges  should  be  appointed  within  one  term  of  the  chief 
justice.  Under  such  an  arrangement  the  judges  would  continue  to  be 
chosen  independently  of  the  other  organs  of  government;  while  the 
voters  would  be  relieved  of  the  impossible  task  of  electing  70  judges 
from  several  hundred  candidates. 

It  will  not  be  advisable  definitely  to  prescribe  this  or  any  other 
system  in  the  state  constitution;  but  it  may  be  made  possible  to 
deal  by  legislation  with  the  detailed  organization  of  the  judiciary  in 
the  special  conditions  of  a metropolitan  community,  subject  to  a 
local  referendum.  And  to  meet  conditions  which  may  arise  later  in 
other  urban  centers,  the  organization  of  courts  inferior  to  the  supreme 
court  may  properly  be  left  to  the  general  assembly. 

It  may  be  noted  that  the  appointive  system  is  still  in  use  for  all 
judges  of  the  United  States  courts  and  for  judges  in  Massachusetts, 
New  Jersey  and  a number  of  other  states,  mostly  on  the  Atlantic 
seaboard.  But  separate  judicial  elections  appear  to  meet  the  require- 
ments of  the  short  ballot  for  the  most  part  in  Illinois,  outside  of 
Chicago  and  Cook  County. 

There  is,  however,  much  less  reason  for  the  election  of  court 
clerks  and  bailiffs,  whose  duties  are  purely  administrative  and 
ministerial.  Such  officers  may  well  be  made  appointive  and  eliminated 
from  the  ballot. 


County  Officers.  The  problem  of  dealing  with  county  officers 
in  accordance  with  a short  ballot  program  is  one  of  no  little  complexity. 
One  difficulty  in  reducing  the  number  of  elective  officers  is  that 
no  one  of  the  county  officers  is  distinctly  recognized  as  the  chief 
officer  of  the  county  in  whom  the  power  of  appointing  other  officers 
could  be  vested.  Various  possibilities  might  be  suggested  as  to  pro- 
viding a chief  county  officer;  but  it  is  doubtful  if  any  definite 


368 


scheme  should  be  permanently  established  in  the  constitution.  It 
may  rather  be  left  to  be  developed  by  statutory  legislation,  under 
arrangements  for  local  option.  For  it  must  be  recognized  that, 
at  least  outside  of  urban  communities,  there  will  be  a strong  de- 
mand for  the  retention  of  a number  of  elective  county  officers. 

If.  however,  the  way  is  to  be  left  open  for  an  effective  short 
ballot,  the  present  constitutional  provisions  requiring  the  election 
of  many  county  officers  at  the  same  time  that  other  officers  are 
elected  will  have  to  be  eliminated.  The  constitution  should  at  least 
make  it  possible  for  the  legislature  to  modify  the  present  system, 
subject  perhaps  to  approval  by  the  counties.  And  attention  may 
also  be  given  to  the  advisability  of  a provision  for  county  home 
rule,  under  which  any  county  would  be  enabled  to  adopt  its  own 
system  of  county  organization. 


Other  local  districts.  The  elective  officers  for  cities,  towns 
and  other  local  districts  are  established  by  statutory  legislation. 
It  is  not  advisable  to  undertake  to  establish  a stereotyped  system 
for  these  various  districts  in  the  constitution.  The  problem  of 
local  organization  should  be  left  to  be  met  by  legislation  or  under  a 
system  of  local  home  rule.  But  it  is  advisable  to  eliminate  from 
the  constitution  provisions  which  encourage  and  almost  force  the 
creation  of  special  districts,  the  multiplication  of  local  elective 
offices  and  the  increase  in  the  number  of  elections. 


APPENDIX.  REFERENCES. 


American  Political  Science  Association  Proceedings,  vol.  VI, 
(1909). 

American  Political  Science  Review,  V,  394  (1911)  ; XI,  322  (1917). 

Beard,  C.  A. : American  Government  and  Politics  Ch.  231,  pp. 

474-487. 

The  Ballot’s  Burden,  Political  Science  Quarterly,  Vol.  24,  (1909). 

Childs,  R.  S. : Short  Ballot  Principles  (1911). 

Kales,  A.  M. : Unpopular  Government  in  the  United  States. 

Macy,  Jesse:  Ballot,  Short — in  Cyclopedia  of  American  Govern- 

ment, I,  104-105. 

Political  Science  Quarterly,  Vol.  21,  p.  38,  (1906)  P.  I.  Allen: 
Ballot  laws  and  their  working. 

Root,  Elihu : Address  on  Invisible  Government  (New  York  Con- 
stitutional Convention  1915,  Document  No.  50). 

Wilson,  Woodrow:  Hide-and-Seek  Politics,  North  American  Re- 

view, May,  1910. 

Chicago  Bureau  of  Public  Efficiency:  The  Nineteen  Local  Gov- 

ernments of  Chicago  (1913 — 2d  Ed.  1915). 

Chicago  City  Club:  The  Short  Ballot  in  Illinois  (1912). 

Civic  League  of  St.  Louis:  The  Short  Ballot  (1914). 

Massachusetts  Constitutional  Convention  Bulletin  No.  10 ; The 
Short  Ballot  (1917). 

Municipal  Association  of  Cleveland : The  need  of  a Short  Ballot 

for  Ohio  (Dec.,  1911). 

National  Short  Ballot  Organization:  The  First  Short  Ballot 

County  (Los  Angeles,  Calif.) 

New  York  Short  Ballot  Organization:  The  Short  Ballot  in  the 

State  of  New  York  (1914). 

Thompson,  B.  M. : Are  too  many  executive  officers  elective? 

Michigan  Law  Review,  VI,  228-237. 

Updyke,  F.  A.:  The  Short  Ballot  Principle  in  New  Hampshire. 


' r 


r 


CONSTITUTIONAL  CONVENTION 


BULLETIN  No.  6 


Municipal  Home  Rule 

V 


Compiled  and  Published  by  the 
LEGISLATIVE  REFERENCE  BUREAU 
Springfield,  Illinois 


[Printed  by  authority  of  the  State  of  Illinois.] 


LEGISLATIVE  REFERENCE  BUREAU. 


e — 

Governor  Frank  O.  Lowden,  Chairman. 
Senator  Edward  C.  Curtis,  Grant  Park. 
Senator  Richard  J.  Barr,  Joliet. 
Representative  Edward  J.  Smejkal,  Chicago. 
Representative  William  P.  Holaday,  Danville. 


E.  J.  Verlie,  Secretary. 

W.  F.  Dodd,  in  charge  collection  of  data  for 
constitutional  convention. 


TABLE  OF  CONTENTS. 


PAGE. 


I.  Summary  3?  T 

The  State  and  Municipal  Government  in  Illinois 377 

Status  of  Municipalities  in  other  States 378 

Municipal  Hbme  Rule.. 379 

Comments  and  Problems. 381 

II.  The  State  and  Municipal  Government  in  Illinois.  . . 382 

Legislative  Authority  over  Municipalities 382 

Special  Legislation  under  the  First  Constitution.....  382 

Limitations  in  the  Constitution  of  1848 383 

Special  Legislation  under  the  Second  Constitution 384 

The  Constitution  of  1870. 385 

General  Legislation  387 

Optional  Laws ........ 391 

Classification  of  Municipalities 391 

Overlapping  Districts  393 

Special  Legislation  for  Chicago 395 

Local  Control  of  Street  Railways 396 

General  Situation 397 

III.  Status  of  Municipalities  in  Other  States.  . .’ 399 

State  and  Legislative  Supremacy 399 

Constitutional  Limitations  399 

Restrictions  on  Special  Legislation 400 

Results  under  Prohibition  on  Special  Legislation 402 

Other  Methods  for  limiting  Legislative  Control.  402 

Optional  Laws  404 

Financial  Restrictions 404 

IV.  Municipal  Home  Rule 406 

Legislative  Home  Rule 406 

Constitutional  Home  Rule 407 

Charter-making  Procedure 409 

Scope  of  Municipal  Powers 411 

Requirements  and  Limitations 414 


IV.  Municipal  Home  Rule — Concluded. 

Proposed  New  York  Constitution 415 

National  Municipal  League  Proposal 416 

Consolidation  of  Local  Districts 416 

General  Comparison  of  Home  Rule  Provisions 418 

V.  Comments  and  Problems 419 

Criticism  of  Existing  Conditions 419 

Advantages  of  Municipal  Home  Rule 420 

Objections  to  Municipal  Home  Rule 420 

Relation  of  Municipal  Home  Rule  to  the  Public  Util- 
ities Problem 421 

A Possible  Home  Rule  Program 423 

Draft  of  Municipal  Home  Rule  Provisions 426 

Appendix  No.  1.  References 429 

Appendix  No.  2.  Home  Rule  Provisions 431 

1.  Missouri  431 

2.  Colorado 432 

3.  Michigan 434 

4.  Ohio....- 435 

5.  Oregon 437 

6.  Texas 438 

7.  New  York  (Proposed  Constitution,  1915) 438 

8.  National  Municipal  League  Provisions 442 

9.  Utah  Proposed  Amendment,  1919 445 

10.  Wisconsin  Proposed  Amendment,  1919 44? 


I.  SUMMARY. 


The  State  and  Municipal  Government  in  Illinois : At  the  basis 
of  the  legal  relations  between  the  state  and  municipal  government 
in  Illinois  is  the  principle  of  legislative  supremacy,  except  as  modi- 
fied by  provisions  in  the  state  constitution.  Under  the  first  state 
constitution  which  contained  no  definite  restrictions,  this  doctrine 
was  expressed  in  judicial  opinions  in  sweeping  terms;  and  while 
later  opinions  have  recognized  the  limitations  in  the  second  and 
third  constitutions,  the  general  principles  of  legislative  control,  ex- 
cept as  specifically  limited,  have  been  restated. 

Until  1870  municipal  government  in  Illinois  was  regulated  for 
the  most  part  by  special  laws  for  particular  towns  and  cities.  A 
general  law  for  incorporated  towns  was  enacted  in  1831,  but  special 
legislation  continued  for  many  towns  as  well  as  for  all  cities.  Up 
to  1848  the  total  amount  of  this  legislation  was  not  large ; but  with 
the  rapid  development  of  the  state  after  that  date,  it  increased  rap- 
idly; and  from  1857  on,  there  was  a flood  of  special  and  private 
laws.  In  1869  there  were  four  volumes  of  such  laws,  with  a total  of 
3,350  pages,  of  which  1,850  pages  related  to  cities,  towns  and 
schools.  The  result  was  a bewildering  chaos  of  legislation,  with  no 
semblance  of  policy  or  responsibility. 

A few  provisions  in  the  Constitution  of  1848  had  placed  some 
restrictions  on  the  General  Assembly,  mainly  in  reference  to  coun- 
ties and  taxation  for  corporate  purposes ; but  these  had  practically 
no  effect  on  the  legislation  for  cities  and  towns.  In  the  Constitu- 
tion of  1870  a sweeping  prohibition  on  special  legislation  for  cities, 
towns  and  villages  was  adopted,  also  a constitutional  limitation  on 
municipal  debt,  and  provisions  relating  to  special  assessments  and 
requiring  local  consent  for  street  railways.  These  restricted  the 
power  of  the  General  Assembly  over  municipalities,  but  there  was 
no  positive  grant  to  cities  of  municipal  home  rule. 

Beginning  with  the  optional  law  of  1872  for  the  incorporation 
of  cities  and  villages,  legislation  on  municipal  government  in  Illi- 
nois has  been  general  in  form.  The  number  of  separate  acts  and  the 
volume  of  such  legislation  has  increased  steadily,  and  now  forms  a 
total  of  probably  500  pages  in  the  most  generally  used  edition  of  the 
Statutes.  This  legislation  also  lacks  systematic  arrangement,  and 
presents  a confusing  mass  of  detailed  provisions  badly  in  need  of 
orderly  codification  and  simplification. 

To  some  extent  variations  in  the  laws  relating  to  municipal 
government  have  been  secured  by  the  passage  of  optional  laws,  by 
the  classification  of  municipalities,  and  by  provisions  for  special  dis- 
tricts. Optional  laws,  adoptive  by  popular  vote,  have  been  upheld 


378 


by  the  Supreme  Court.  Classification  has  also  been  recognized  to 
some  extent ; but  while  not  carried  so  far  as  in  some  other  states,  no 
one  definite  system  of  classification  has  been  put  in  force.  Laws  for 
special  districts  have  multiplied  the  number  of  overlapping  local 
authorities  and  added  much  to  the  complexity  of  local  government 
in  Illinois. 

In  addition  to  special  arrangement  secured  in  these  ways,  an 
amendment  to  the  Constitution  adopted  in  1904  has  authorized  spe- 
cial legislation  for  Chicago  subject  to  a local  referendum.  Some  laws 
have  been  adopted  under  this  provision ; but  a comprehensive  char- 
ter framed  by  a local  convention,  but  modified  by  the  General  As- 
sembly (in  1907),  was  defeated  at  the  local  referendum. 

Section  4 of  Article  XI,  requiring  the  consent  of  the  local 
authorities  for  street  railways  in  cities,  as  first  construed  by  the 
Supreme  Court,  appeared  to  give  cities  a large  measure  of  control 
over  such  utilities.  But  in  later  decisions  it  has  been  held  that  this 
is  subject  to  the  paramount  police  power  of  the  legislature  in  all 
matters  that  affect  the  public  safety,  welfare,  comfort  and  conven- 
ience. 

Under  present  conditions,  local  communities  in  Illinois  are  pro- 
tected from  arbitrary  legislative  interference ; but  there  is  a demand 
for  a larger  degree  of  municipal  home  rule. 


Status  of  Municipalities  in  Other  States.  The  prevailing  rule 
in  American  States,  as  to  the  basic  legal  relations  between  the  state 
and  municipalities  is  the  same  as  in  Illinois.  Municipal  corpora- 
tions are  created  by  the  state,  derive  all  their  powers  from  the 
state,  and  are  subject  to  the  control  of  the  state  legislature,  except 
as  limited  by  the  state  constitution.  Under  the  earlier  state  consti- 
tutions, with  few  restrictions  of  any  sort  on  the  legislature,  the 
power  of  the  legislature  over  local  governments  was  practically  un- 
limited. But  in  later  constitutions  and  amendments  provisions 
have  been  adopted  restricting  legislative  control  and  also  restrict- 
ing municipalities. 

Most  state  constitutions  now  contain  provisions  relating  to 
counties  and  county  officers.  Massachusetts  in  1821  required  a 
local  referendum  on  the  formation  of  cities ; and  beginning  with 
New  York  in  1846  several  states  have  provisions  for  the  local  elec- 
tion or  appointment  of  city  officers.  Beginning  with  Indiana  and 
Ohio  in  1851,  special  legislation  on  municipal  corporations  has  been 
prohibited  in  thirty  states,  while  several  other  states  impose  some 
restrictions  on  such  special  legislation.  These  provisions  have 
checked  legislative  interference  in  local  affairs ; but  by  means  of 
the  classification  of  municipalities  and  the  continued  practice  of 
detailed  legislation,  a good  deal  of  what  is  practically  special  legis- 
lation continues  to  be  enacted. 

In  a few  states  other  methods  have  been  adopted.  In  New 
York  special  city  laws  are  subject  to  a suspensive  local  veto  by  the 


379 


mayor  or  mayor  and  council ; and  in  Michigan  special  acts  must  be 
submitted  to  a local  referendum.  In  a number  of  states  several  op- 
tional plans  of  city  government  have  been  authorized ; but  none  of 
these  methods  gives  municipalities  full  authority  to  work  out  their 
own  system  of  local  organization. 

Constitutional  provisions  have  also  been  adopted  for  the  limi- 
tation of  municipal  debts.  Beginning  with  New  York  in  1846  the 
legislatures  in  a number  of  states  are  definitely  required 
to  limit  the  taxing  and  borrowing  powers  of  municipalities. 
Beginning  with  Indiana  and  Ohio  in  1851,  thirty  states  prohibit 
municipal  aid  to  private  corporations;  and  several  other  states 
have  partial  limitations.  Since  about  1870  constitutional 
limitations  on  the  amount  of  municipal  debt  have  been 
adopted  in  twenty-eight  states,  South  Carolina  and  Ne- 
braska limiting  the  aggregate  debt  of  all  municipal  cor- 
porations ; and  many  states  have  other  restrictions.  These  con- 
stitutional restrictions  have  been  criticised  as  too  rigid ; and  some 
states  have  modified  them  by  exempting  loans  for  public  utilities. 
While  some  control  over  municipal  debts  is  necessary,  it  is  doubtful 
if  this  can  be  completely  regulated  by  constitutional  provisions. 


Municipal  Home  Rule : In  a few  states  legislatures  have 
passed  acts  authorizing  cities  to  amend  their  charters  or  adopt  new 
charters.  An  Iowa  Act  of  1858,  for  this  purpose,  was  referred  to  in 
the  Illinois  Constitutional  Convention  of  1870.  Similar  acts  have 
been  passed  more  recently  in  Louisiana  (1896),  South  Carolina 
(1899),  Mississippi  (1900),  and  in  Connecticut  and  Florida  (1915). 
Such  laws  have  been  held  constitutional  in  Iowa  and  Mississippi ; 
but  there  are  very  few  cases  where  action  has  been  taken  under 
them.  Similar  acts  passed  in  Michigan  (1899)  and  Wisconsin 
(1911)  have  been  held  invalid  as  an  unconstitutional  delegation  of 
legislative  power ; and  a less  far  reaching  home  rule  act  passed  in 
New  York  in  1913  has  not  been  used,  owing  to  distrust  as  to  its 
validity. 

Beginning  with  Missouri  in  1875,  thirteen  states  have  adopted 
constitutional  provisions  authorizing  cities  to  frame  and  adopt  their 
own  charters  of  municipal  government:  California  (1879),  Wash- 
ington (1889),  Minnesota  (1896),  Colorado  (1902),  Oregon  (1906), 
Oklahoma  (1907),  Michigan  (1908),  Arizona  (1911),  Nebraska, 
Ohio  and  Texas  (1912),  and  Maryland  (1915).  In  Missouri  this 
power  is  given  only  to  cities  of  over  100,000  population,  and  in 
Maryland  only  to  Baltimore  and  the  counties  of  that  state.  In  the 
other  states  it  applies  to  all  cities  (sometimes  also  to  villages),  or 
to  all  over  a minimum  population  (from  2,000  in  Oklahoma  to  20,000 
in  Washington),  and  in  California  also  to  counties. 

This  power  has  been  freely  used  in  most  of  these  states ; and 
altogether  more  than  200  cities  and  villages  are  now  operating 


380 


under  home  rule  charters,  including  fifteen  of  the  thirty  largest 
cities  in  the  country. 

In  most  of  the  constitutional  provisions  for  municipal  home 
rule,  the  procedure  for  charter  making  is  prescribed ; but  in  Michi- 
gan and  Texas  the  methods  of  procedure  are  defined  by  statute. 
The  first  step  may  usually  be  taken  either  by  the  local  council  or  a 
popular  petition,  with  a popular  vote  on  the  question  of  revising  the 
charter.  In  all  the  home  rule  states  but  Oregon  a new  charter  is 
prepared  by  a special  charter  commission ; and  such  commissions 
are  elected  by  popular  vote,  except  in  Minnesota  where  they  are  ap- 
pointed by  the  district  judges.  Proposed  charters  are  in  all  states 
submitted  to  popular  ratification.  Amendments  to  charters  may  be 
proposed  by  local  councils  or  popular  petition  and  are  submitted  to 
popular  ratification. 

Most  of  the  earlier  home  rule  provisions  do  not  define  the  scope 
of  municipal  powers ; and  also  provide  that  the  local  charters  are 
subject  to  the  constitution  and  laws  of  the  state.  Under  these  con- 
ditions charter  provisions  in  conflict  with  state  laws  have  been  held 
invalid.  Later  provisions  have  included  more  definite  and  positive 
statements  of  the  powers  conferred ; notably  those  of  Michigan  and 
Ohio,  and  amendments  adopted  in  California  and  Colorado.  These 
include  a general  grant  of  power  as  to  “municipal  concerns”  or 
“local  self  government”,  with  an  enumeration  of  specified  powers. 

In  most  home  rule  states,  the  constitutional  provisions  include 
some  mandatory  requirements,  and  also  limitations.  In  some  cases 
these  prescribe  certain  officials ; and  in  other  cases  provide  for  the 
limitation  of  taxes  and  debts  and  for  financial  reports. 

The  proposed  New  York  Constitution  of  1915  contained  provi- 
sions for  municipal  home  rule  more  complicated  and  more  conser- 
vative than  in  the  home  rule  states ; but  this  constitution  was  not 
ratified  by  the  people. 

Proposed  home  rule  amendments  have  beep  approved  by  one 
legislature  in  New  York  (1917)  and  Wisconsin  (1919),  but  must  be 
repassed  by  a second  legislature  in  these  states  before  submission. 
In  Utah,  a proposed  home  rule  amendment,  submitted  in  1919,  will 
be  voted  on  in  1920. 

Proposed  constitutional  provisions  for  municipal  home  rule 
have  been  recommended  by  the  Committee  on  Municipal  Program 
of  the  National  Municipal  League.  These  include  a general  grant 
of  power,  and  also  some  enumerated  powers  and  provisions  for 
legislative  control  by  general  laws  in  matters  relating  to  state  af- 
fairs. 

The  problem  of  municipal  home  rule  is  further  complicated  by 
overlapping  districts ; which  are  probably  more  numerous  in  Illinois 
than  in  other  states.  In  some  states  city  and  county  government  in 
large  cities  has  been  consolidated ; and  such  consolidation  is  author- 
ized in  the  constitutions  of  several  other  states. 

The  constitutional  provisions  in  Michigan  and  Ohio  and  those 
proposed  by  the  National  Municipal  League  offer  the  best  basis 
for  an  adequate  system  of  municipal  home  rule.  In  most  of  the 


381 


other  home  rule  states  there  is  too  much  detail  as  to  procedure,  and 
no  adequate  grant  of  local  powers;  those  of  Oregon  and  Texas  are 
too  brief  and  vague;  and  those  of  California  and  the  proposed  New 
York  constitution  much  too  long  and  complicated. 


Comments  and  Problems:  The  defects  and  evils  arising  from 
the  present  methods  of  legislation  on  municipal  affairs  may  be  sum- 
marized as  follows : 

(a)  The  waste  of  legislative  time,  and  the  demoralizing  ef- 
fect on  the  work  of  the  legislature ; 

(b)  The  lack  of  adequate  power  on  the  part  of  local  communi- 
ties to  deal  promptly  and  effectively  with  local  problems ; 

(c)  The  lack  of  responsibility  for  acting  on  local  problems; 

and 

(d)  The  voluminous  and  confused  state  of  the  present  laws. 

In  favor  of  a system  of  municipal  home  rule,  it  is  urged  that 

it  will : 

(a)  Give  each  community  an  opportunity  to  have  the  kind  of 
local  government  it  wants  ; 

(b)  Develop  public  interest  in  local  affairs ; 

(c)  Enable  local  communities  to  deal  with  local  problems 
more  promptly; 

(d)  Make  local  government  better  adapted  to  local  conditions, 
and  more  stable  for  each  community ; 

(e)  Simplify  the  laws  and  machinery  of  local  government;  and 

(f)  Relieve  the  legislature. 

A fundamental  objection  urged  against  municipal  home  rule  is 
that  it  is  inconsistent  with  the  sovereignty  of  the  state,  but  this  is 
not  borne  out  in  practice.  Some  specific  objections  are  not  con- 
sistent with  each  other — as  that  it  will  increase  the  confusion  in 
local  government,  and  yet  will  make  changes  more  difficult  than 
under  present  methods.  More  serious  difficulties  are,  however, 
raised  as  to  the  application  of  the  general  principle. 

The  outline  of  a possible  home  rule  program  is  presented  on 
pages  423  to  428,  including  provisions  as  to  the  character  and  ex- 
tent of  the  power  to  be  granted  to  municipalities,  and  also  sug- 
gested limitations  and  restrictions. 


382 


II.  THE  STATE  AND  MUNICIPAL  GOVERNMENT  IN 

ILLINOIS. 


Legislative  Authority  over  Municipalities : At  the  basis  of  the 
legal  relations  between  the  State  and  municipal  governments  in 
Illinois  is  the  principle  of  legislative  supremacy,  except  as  modified 
by  provisions  in  the  state  constitution.  The  general  principle  was 
expressed  by  the  Supreme  Court  as  early  as  1826 ; and  the  situa- 
tion under  the  first  state  constitution  was  more  definitely  stated  in 
the  case  of  People  v.  Wren  (in  1843)  as  follows : 1 

“As  the  constitution  of  this  state  contains  no  restriction,  either 
express  or  implied,  upon  the  action  of  the  legislature  in  such  a case, 
we  hold  that  it  has  absolute  control  over  municipal  corporations,  to 
create,  change,  modify  or  destroy  them  at  pleasure  * * * * The 
creation  of  a municipal  corporation  depends  in  no  degree  upon  the 
assent  or  dissent  of  the  inhabitants  of  a particular  locality,  unless 
such  a condition  be  contained  in  the  law  of  its  creation.” 

Under  the  later  state  constitutions  the  plenary  power  of  the 
legislature  has  been  limited  in  some  respects ; and  general  state- 
ments in  judicial  opinions  have  recognized  such  restrictions,  which 
will  be  noted  later.  But  the  main  doctrines  of  legislative  control, 
except  as  specifically  limited,  and  of  strict  construction  of  munici- 
pal powers,  remain  in  full  force. 2 


Special  Legislation  under  the  First  Constitution:  During  the 

periods  of  the  first  and  second  constitutions,  municipal  government 
in  Illinois  was  regulated  for  the  most  part  by  special  laws  for  par- 
ticular towns  and  cities.  Before  state  government,  the  towns  of 
Kaskaskia  and  Shawneetown  had  been  incorporated.  After  1818 
other  towns  were  similarly  incorporated  by  special  acts  of  the  leg- 
islature. A general  act  for  the  incorporation  of  towns  was  enacted 
in  1831 ; and  additional  towns  were  organized  under  this  law,  al- 
though special  acts  for  towns  continued  to  be  passed. 


*5  111.  269,  275  (1843).  But  note  the  dissenting  opinion  by  Justice  Wilson 
that  the  legislature  did  not  have  power  to  leave  a part  of  the  state  without 
any  county  organization  whatever.  Note  also  Coles  v.  County  of  Madison,  1 111. 
154,  160  (1826),  and  Field  v.  People  3 111.  79,  95  (1839). 

2 Thus,  in  the  case  of  Wilson  v.  Trustees  of  the  Sanitary  District,  133  111. 
443,  460  (1890)  it  is  stated  that:  “The  omnipotence  of  the  General  Assembly  in 

all  matters  relating  to  the  authorization  of  the  formation  of  municipal  corpora- 
tions and  investing  them  with  powers  of  local  government,  except  so  far  as  the 
restrictions  have  been  placed  upon  the  legislature  by  the  constitution,  has  been 
often  asserted.”  Note  also,  True  v.  Davis,  133  111.  522',  531,  (1889):  Seeger  v. 
Mueller,  133  111.  86,  94  (1890);  Smith  v.  McDowell,  148  111.  51,  62  (1893);  Chicago 
v.  M.  & M.  Hotel  Co.  248  111.  264,  269  (1911). 


383 


Chicago,  which  was  first  organized  as  a town  under  the  general 
law,  received  a special  town  charter  in  1835,  and  its  first  city  char- 
ter in  1837.  The  latter  was  framed  by  a local  committee,  approved 
at  a mass  meeting;  and  enacted  by  the  legislature  with  some 
changes.  Nearly  a score  of  amending  and  supplemental  acts  relat- 
ing to  Chicago  were  passed  during  the  next  decade. 

Seven  other  places  were  incorporated  as  cities  before  1847,  all 
by  special  laws — Alton,  Galena,  Springfield,  Quincy,  Nauvoo,  Pe- 
oria and  Metropolis.  The  Springfield  and  Quincy  charters  were 
nearly  identical,  and  were  followed  in  later  charters.  Five  of  these 
seven  city  charters  were  submitted  to  a local  referendum  before  go- 
ing into  effect ; but  this  practice  was  not  followed  in  amending  and 
supplemental  legislation  which  soon  began  to  appear. 


Limitations  in  the  Constitution  of  1848 : The  Constitution  of  r 

1848  contained  several  provisions  relating  to  municipal  'and  local 
government.  Article  VII  on  Counties  restricted  the^  or- 
ganization of  new  counties  and  changes  in  county.--  boun- 
daries and  county  seats,  and  authorized  an  optional  system 
of  township  organization.  In  the  Article  on  the  Judiciary, 
the  power  of  the  General  Assembly  to  establish  inferior 
courts  was  limited  by  providing  for  circuit  and  county  courts  and 
specifically  authorizing  inferior  local  courts  in  cities,  which  should 
!isve  a uniform  organization  and  jurisdiction.  Section  5 of  Article 
IX  provided  for  vesting  power  of  taxation  for  corporate  purposes 
in  the  corporate  authorities  of  counties,  townships,  school  districts, 
cities,  towns  and  villages. 

As  a result  of  these  provisions,  the  plenary  power  of  the  legis- 
lature was  limited  to  a slight  extent ; but  no  definite  measure  of 
municipal  home  rule  was  conferred.  Judicial  opinions  from  time  to 
time  restated  the  rule  of  legislative  control,  as  in  the  following: 

“While  private  corporations  are  regarded  as  contracts  which 
the  legislature  can  not  constitutionally  impair,  as  the  trustee  of 
public  interests,  it  has  the  exclusive  and  unrestrained  control  over 
public  corporations ; and  as  it  may  create,  so  it  may  modify  or  des- 
troy, as  public  exigency  requires,  or  the  public  interest  demands. 

* * * Their  whole  capacities,  powers  and  duties  are  derived  from 
the  legislature  and  subordinate  to  that  power.”  3 


3 People  v. -Power.  25  111.  169.  174  (1861);  See  County  of  Richmond  v.  County 
of  St.  Lawrence.  12  111.  1.  7 (1850):  Trustees  v.  Tatman,  13  111.  27.  30  (1851): 
Gutzweiler  v.  People.  14  111.  142  (1852):  Freeport  v Supervisors.  41  111.  495.  499 
(1866));  Trustees  of  Jacksonville  v.  McConnel,  12  111.  138  (18501:  Caldwell  v. 
City  of  Alton.  33  111.  417  (1864)  : Chicago  v.  Rumpff,  45  111.  90,  95  (1867). 

A few  judicial  interpretations  of  particular  provisions  of  the  constitution 
may  be  noted:  City  of  Rockford  v.  Maynard,  14  111.  419  (1853);  Prettyman  v. 
Supervisors  of  Tazewell  Co.  19  111.  406.  411  (1858);  People  v.  Mayor,  etc.  of 
Chicago.  51  111  17  (1869). 

The  most  important  rulings  protecting  local  communities  against  the  power 
of  the  legislature  were  in  two  cases  decided  in  1869.  People  v.  Mayor  etc., 
of  Chicago,  51  111.  17  (1869);  Harward  v.  St.  Clair  & M.  L.  & D,  Co.,  51  111.  130, 
134  (1869);  Contrast,  Shaw  v.  Dennis,  10  111.  405,  416  (1849). 


384 


Special  Legislation  Under  the  Second  Constitution:  From 

1848  to  1870,  there  was  a rapid  development  of  towns  and  cities  in 
Illinois,  both  in  number  and  population;  and  as  the  practice  of 
special  legislation  continued  the  number  and  volume  of  special 
laws  relating  to  municipal  government  increased  enormously.  At 
the  same  time  former  methods  for  testing  local  approval  of  such 
measures  fell  into  disuse ; and  important  acts  were  passed  against 
vigorous  local  opposition. 

The  new  optional  system  of  township  government  authorized 
by  the  Constitution  of  1848  had  important  results  on  the  govern- 
ment of  cities.  The  townships  included  any  city  within  their 
geographical  limits ; and  an  overlapping  series  of  township  officials 
was  now  provided  in  addition  to  the  city  officials  in  counties  which 
adopted  the  new  system. 

One  step  looking  towards  more  general  legislation  for  cities 
was  an  act  of  February  10,  1849,  supplementing  the  general  town 
law,  and  providing  that  any  incorporated  town  of  more  than  1,500 
population  might  vote  to  incorporate  as  a city  with  all  the  powers 
granted  in  their  special  charters  to  the  cities  of  Springfield  and 
Quiri&y.  Some  towns  became  cities  under  this  law  (e.  g.  Bloom- 
ington, Aelleville  and  Rockford)  ; but  special  legislation  for  such 
cities  was  al£b  passed ; and  most  cities  were  organized  and  gov- 
erned entirely  under  special  laws,  although  in  a number  of  cases  the 
original  charters  were  made  up  in  the  main  of  provisions  from  the 
Springfield  and  Quincy  charters.’ 

From  time  to  time  general  revisions  of  city  charters  were  passed. 
A second  city  charter  was  enacted  for  Chicago  in  1851,  and  a third 
in  1863.  General  revisions  of  their  charters  were  passed  for  about 
a dozen  other  cities  between  1857  and  1869 ; and  these  documents 
became  more  and  more  bulky. 

Amending  and  supplementing  laws  for  the  100  cities  and  for 
many  of  the  300  incorporated  towns  in  the  state  were  still  more 
numerous  than  new  and  revised  charters. 

The  total  mass  of  special  legislation  is  indicated  in  the  increas- 
ing volume  of  state  laws.  In  1857  the  private  laws  formed  a volume 
of  1,550  pages.  By  1867,  the  private  laws  were  published  in  three 
volumes  of  more  than  2,500  pages,  of  which  1,050  related  to  cities, 
towns  and  schools.  In  1869  there  was  a further  increase  to  four 
volumes  of  3,350  pages,  of  which  1,850  pages  related  to  cities,  towns 
and  schools. 

Obviously  such  a flood  of  statutory  enactments  could  not  re- 
ceive adequate  consideration  either  in  the  General  Assembly  as  a 
whole  or  even  in  the  committees.  Most  of  the  bills  were  doubtless 
prepared  in  the  localities  concerned ; and  were  passed  at  the  request 
of  the  local  members  of  the  legislature.  But,  at  best,  there  was 
little  assurance  that  they  represented  the  views  of  the  local  communi- 
ties; and  the  frequent  changes  from  session  to  session  apparently 
reflected  the  varying  opinions  of  temporary  officials  and  representa- 
tives. At  times  measures  were  enacted  from  partisan  or  other  politi- 


385 


cal  motives,  in  the  face  of  active  local  opposition,  and  in  some  cases 
over  the  veto  of  the  Governor.  Moreover,  it  was  impossible  for  any 
definite  and  consistent  policy  to  be  followed ; and  the  formal  system  of 
detailed  legislative  control  tended  to  degenerate  into  a bewildering 
chaos  of  statutory  provisions  with  no  semblance  of  responsibility  or 
system. 

In  the  constitutional  convention  of  1862,  a section  was  adopted 
prohibiting  local  or  special  laws  on  a list  of  enumerated  subjects.  As 
reported  by  the  committee  of  the  whole,  this  included  laws  for  the 
incorporation  of  cities,  towns  and  villages ; but  this  clause  was  struck 
out  by  the  convention.  In  the  proposed  constitution  special  or  local 
laws  were  prohibited  on  county  and  township  business ; locating  and 
changing  county  seats,  laying  out,  opening,  altering  and  working  on 
roads  arid  highways,  and  vacating  roads,  town  plats,  streets,  alleys 
and  public  squares ; as  well  as  some  other  matters.4 

Another  section  of  the  proposed  constitution  required  general 
laws  and  prohibited  separate  acts  relating  to  corporations.  These  pro- 
visions reported  by  the  committee  on  miscellaneous  corporations  were 
substituted  for  a proposed  section  proposed  by  the  committee  on  mu- 
nicipal corporations  providing  for  general  laws,  uniform  in  operation , 
and  prohibiting  special  laws  relating  to  municipal  corporations,  except 
cities  of  over  a certain  number  of  inhabitants. 5 


The  Constitution  of  1870:  In  the  Constitutional  Convention 

of  1869-70,  a good  deal  of  attention  was  given  to  municipal  prob- 
lems. These  were  handled  by  several  different  committees ; and 
some  difficulties  arose  from  the  fact  that  the  same  and  closely  re- 
lated topics  were  considered  by  more  than  one  committee,  with 
the  result  that  conflicting  reports  were  presented  to  the  convention. 

The  committee  on  the  legislative  department  included  in  its 
report  a section  prohibiting  special  legislation  on  an  enumerated 
list  of  subjects,  among  which  were  named  laws  incorporating  or 
amending  the  charters  of  cities  or  towns.  This  section  was  dis- 
cussed for  two  days  (February  10  and  11)  ; and  about  half  of  the 
time  was  given  to  the  clause  on  cities  and  towns.  The  debate  was 
discursive  and  shows  little  evidence  of  any  systematic  study  of  the 
situation  in  Illinois,  or  in  other  states. 

Mr.  Orville  H.  Browning  of  Quincy  urge.d  that  the  criticism  of 
special  legislation  applied  to  private  and  not  to  municipal  corpora- 
tions; but  this  view  received  little  support.  It  was  stated*  that  the 
greater  portion  of  special  legislation  applied  to  cities  and  towns. 
Complaints  were  made  that  the  Chicago  “city  ring”  could  have 
laws  passed  (raising  salaries,  and  extending  terms  of  office)  against 
the  wish  of  the  public;  of  the  repeal  of  the  charter  of  Warsaw  se- 

4 Journal  of  the  Convention  of  1862,  pp.  456,  601,  831,  1080;  Proposed  Con- 
stitution, Art.  IV,  Sec.  30. 

5 Journal  of  the  Convention  of  1862,  pp.  706,  721,  762,  1092;  Proposed  Consti- 
tution Art.  IX,  Secs.  1-2. 


386 


cured  by  the  senator  from  Hancock  County ; and  of  changes  in  city 
laws  by  a few  individuals  without  consulting  the  inhabitants.  Re- 
ference was  made  to  the  classification  of  cities,  as  in  Ohio  and  differ- 
ent opinions  were  expressed  on  this,  with  no  clear  indication  as  to 
the  attitude  of  the  convention  as  a whole.  One  Chicago  member 
(W.  F.  Coolbaugh)  cited  an  Iowa  law  of  1858  authorizing  cities  to 
amend  their  own  charters  on  petition  and  popular  vote,  as  an  illus- 
tration of  a general  law. 

Several  amendments  to  the  committee  report  were  proposed : 
to  strike  out  the  clause  relating  to  cities  and  towns,  for  a local  ref- 
erendum on  amendments  to  existing  charters,  exempting  cities  of 
over  20,000  population  and  permitting  special  legislation  for  cities 
by  a three-fourths  vote  of  all  the  members  of  each  house.  But  all 
of  these  were  defeated,  with  no  record  of  the  votes ; and  the  com- 
mittee report,  with  a minor  verbal  amendment  proposed  by  Mr. 
Medill  of  Chicago,  was  approved,  also  without  a record  vote,  and 
appears  in  Section  22,  Article  IV  of  the  present  constitution. 6 

More  time  was  given  to  the  question  of  restricting  municipal 
indebtedness,  which  had  increased  to  a great  extent,  largely  for  the 
purpose  of  aiding  the  construction  of  railroads.  The  committee  on 
the  legislative  department  reported  a section  applying  to  local  dis- 
tricts the  prohibition  on  extending  public  credit  to  private  corpora- 
tions or  subscribing  to  the  stock  of  such  corporations ; but  this  was 
stricken  out  in  favor  of  provisions  reported  by  the  committee  on 
state,  county  and  municipal  indebtedness,  limiting  the  total  amount 
of  municipal  debt.  This  proposal  met  with  considerable  opposition, 
and  many  amendments  were  offered ; but  the  committee  report, 
with  some  modifications,  was  approved  in  committee  of  the  whole 
by  a vote  of  42  to  24,  and  concurred  in  by  the  convention  by  a vote 
of  38  to  12.  The  provisions  adopted  appear  in  section  12  of  Article 
IX  of  the  Constitution  of  1870. 

Later  a proposal  was  adopted  to  add  a section  requiring  a two- 
thirds  vote  to  authorize  aid  to  private  corporations ; but  for  this 
there  was  afterwards  substituted  a section  prohibiting  local  aid  to 
private  corporations,  to  be  submitted  to  separate  vote  of  the  people ; 
and  this  section  was  approved  by  popular  vote. 7 

A number  of  proposals  relating  to  municipal  government  were 
referred  to  the  committee  on  municipal  corporations.  Among  these 
not  included  in  the  committe  report  were  provisions  relating  to  the 
powers  of  city  mayors,  the  selection  of  municipal  officials,  and  the 
extension  of  corporate  limits.  The  committee  report  dealt  only 
with  financial  questions ; and  a minority  report  was  presented  by 
Mr.  John  C.  Haines  of  Cook  County. 

The  main  discussion  on  this  report  was  on  the  provisions  re- 
lating to  special  assessments  and  special  taxation  for  local  improve- 
ments. This  question  had  been  brought  up  by  the  decision  of  the 
Supreme  Court  in  the  case  of  Chicago  v.  Larned  (1864),  holding 

6 Convention  of  1869-70,  Debates  and  Proceedings,  I,  pp  590-608,  929. 

7 Debates  and  Proceedings  I,  pp.  189,  211,  669,  833,  851,  931,  964,  1104.  1234- 
1242,  1256,  1260. 


387 


that  special  assessments  must  be  limited  to  the  benefits  conferred, 
and  that  frontage  assessments  for  the  whole  expense  were  invalid. 
The  committee  report  proposed  to  authorize  special  taxation  for 
streets  and  sidewalks  and  to  prohibit  assessments  for  benefits ; but 
this  was  amended  to  authorize  local  improvements  by  special  as- 
sessments or  by  special  taxation  or  otherwise.  The  other  sections 
in  the  committee  report  were  adopted,  with  minor  modifications', 
and  all  these  provisions  appear  in  Sections  9,  10  and  11  of  Article 
IX  of  the  Constitution  of  1870.8 

Two  resolutions  were  introduced  in  the  convention  to  require 
local  consent  for  the  grant  of  street  railway  rights  in  cities,  towns 
and  villages;  and  the  provisions  in  Section  4 of  Article  XI  of  the 
constitution  were  reported  by  the  committee  on  miscellaneous  corpora- 
tions, and  adopted  without  debate. 

During  the  convention,  a provision  was  approved  authorizing 
any  city  with  a population  of  200,000  to  be  organized  into  a sep- 
arate county ; but  this  w’as  later  reconsidered  and  stricken  out,  at 
the  request  of  Cook  County  members.  9 

Other  provisions  were  adopted  in  the  Constitution  of  1870 
relating  to  local  governmental  agencies  and  affecting  the  govern- 
mental affairs  of  cities,  and  are  to  be  found  in  the  Articles  on  the 
Judicial  Department  and  on  Counties.  These  will  be  noted  in 
other  pamphlets ; but  mention  may  be  made  here  of  the  clause 
authorizing  the  creation  of  courts  for  cities  and  incorporated  towns, 
and  the  special  provisions  for  courts  and  a board  of  county  com- 
missioners for  Cook  County  (Secs.  23-28,  Art.  VI;  Sec.  7,  Art.  X). 

The  completed  constitution  of  1870  thus  contained  a 
considerable  number  of  provisions  relating  to  municipal  govern- 
ment. These  are  to  be  found  in  different  articles,  and  are  not  alto- 
gether harmonious.  The  primary  object  appears  to  have  been  to  im- 
pose further  restrictions  on  the  power  of  the  General  Assembly.  A 
secondary  result  has  been  to  reduce  the  control  of  the  legislature 
over  municipalities.  But  some  of  the  provisions  also  impose  or 
involve  limitations  on  the  local  governments ; and  the  new  consti- 
tution made  no  positive  grant  of  municipal  home  rule. 


General  Legislation:  At  the  session  of  the  General  Assembly 
of  1872  a general  act  was  passed  to  provide  for  the  incorporation 
of  cities  and  villages.  This  law  now  forms  the  basis  for  the  govern- 
ment of  these  municipal  corporations  in  Illinois,  though  the  orig- 
inal act  has  been  greatly  amended  from  time  to  time,  and  there 
has  also  been  a good  deal  of  other  legislation  relating  to  municipal 
government.  Even  a summary  of  this  legislation  is  impossible 
here ; but  some  general  characteristics  may  be  noted,  with  special 
reference  to  the  question  of  municipal  home  rule. 

8 Chicago  v.  Larned,  34  111.  203  (1864);  Debates  and  Proceedings  I,  154,  390, 

1669-1676,  1723-25. 

9 Proceedings  and  Debates,  II,  1521,  1536,  1835-36. 


388 


The  general  incorporation  act  of  1872  provided  for  the  incor- 
poration of  new  cities  and  villages,  and  for  the  organization  and 
powers  of  such  cities  and  villages,  and  also  of  existing  cities,  vil- 
lages and  towns  which  voted  to  adopt  the  law.  The  law  appears 
to  have  been  drafted  with  reference  to  the  charter  of  Chicago,  the 
largest  city  in  the  state ; and  conferred  the  same  powers  on  all 
cities  and  villages  which  came  under  its  operation.  The  main 
powers  of  the  local  councils  were  enumerated  in  detail  in  a long 
section  of  96  clauses,  covering  7^  pages.  A small  list  of  adminis- 
trative officers  were  definitely  provided,  and  the  local  councils  were 
authorized  to  establish  other  offices  as  needed.  Financial  methods 
were  regulated  in  some  detail ; and  an  article  on  special  assessments 
provided  for  the  use  of  this  method  of  financing  local  improvements, 
as  authorized  by  the  new  constitution. 

When  enacted,  this  law  was  probably  the  best  general  law  on 
city  and  village  government  in  the  United  States.  It  provided  a 
comparatively  simple  and  somewhat  flexible  plan  of  municipal  or- 
ganization ; and  while  following  the  established  practice  of  enum- 
erated powers,  it  gave  considerable  authority  to  the  local  councils 
in  working  out  the  details  of  municipal  organization. 

But  this  act  did  not  cover  the  whole  field  of  the  former  special 
city  charters  or  of  city  problems.  It  contained  nothing  on  the 
assessment  of  property  for  taxation  or  the  management  of  schools ; 
and  these  subjects  were  from  this  time  dealt  with  in  other  laws. 
At  the  same  session  of  the  General  Assembly  in  1872  there  were 
passed  eight  other  acts  relating  to  cities  and  villages, — including 
acts  for  the  annexation  of  territory,  concerning  the  appointment 
and  removal  of  city  officers,  and  authorizing  cities  and  villages 
to  contract  for  a supply  of  water  for  public  use. 

The  new  corporation  law  seemed  to  commend  itself  to  the  local 
communities  in  Illinois.  It  was  adopted  in  1872  by  more  than  50 
cities  and  incorporated  towns  (including  Evanston  and  Moline) 
and  by  about  30  new  cities  and  villages;  in  1873  there  were  more 
than  40  reincorporations  and  more  than  40  new  incorporations 
under  the  law ; and  other  municipalities  were  reincorporated  and 
established  in  succeeding  years.  Chicago  adopted  the  new  law  in 
1875.  With  the  prohibition  on  the  amendment  of  special  charters, 
the  adoption  of  the  general  law  offered  the  only  way  of  securing 
enlarged  powers. 

Some  cities  and  towns,  however,  continued  to  operate  under 
their  former  charters  for  a considerable  time.  Peoria,  for  example, 
did  not  adopt  the  general  law  until  1894,  Quincy  not  until  1895, 
and  Bloomington  not  until  1897.  There  are  still  a few  cities  and 
some  towns  and  villages  operating  under  their  old  special  charters ; 
and  a number  of  other  places  where  the  special  charter  provisions 
relating  to  schools  are  still  continued.10 

10  The  Supreme  Court  has  held  that  the  provisions  of  a special  charter 
relating  to  schools  remain  in  force,  notwithstanding  the  adoption  by  the  city  of 
the  general  cities  and  villages  act.  Smith  v.  The  People,  154  111.  58,  69  (1894). 
It  has  also  held  that  an  act  repealing  the  school  provisions  of  a special 
charter  for  a particular  city,  thus  bringing  the  management  of  schools  under 
the  general  school  law,  is  not  in  violation  of  the  prohibition  on  special  legis- 
lation. People  v.  Crowley,  274  111.  139,  146  (1916). 


389 


Reincorporation  and  Incorporation  under  the  Cities  and  Villaqes  Act 

of  18/2. 


Years 

Cities  and  Towns 
Reincorporated 

Cities  and  Villages 
Incorporated 

Total 

1872-88 

177 

212 

389 

1881-90 

87 

164 

251 

1891-00 

40 

190 

230 

1901-10 

22 

149 

171 

1910-17 

9 

48 

57 

Total  . . 

335 

763 

1098 

Cities,  Towns  and  Villages  under  Special  Charters. 


Cities : 

* 

Population  1910 

Abingdon, 

incorporated  1857 

2500 

La  Harpe 

(6 

1859 

1349 

Lake  Forest 

U 

1861 

3349 

New  Boston 

U 

1859 

718 

Oneida 

u 

1869 

589 

Incorporated  Towns: 

Astoria 

1839 

1357 

Chatsworth 

1867 

1112 

Cicero 

1867 

14525 

Golconda 

1845 

1088 

Lena 

1869 

1168 

Magnolia 

1859 

368 

Mason 

1865 

345 

New  Canton 

1869 

473 

Normal 

1865 

4024 

Otterville 

1867 

179 

Rushville 

1839 

2422 

* Topeka  “ 

1869 

130 

Woodburn 

1869 

175 

Villages : 

Claremont 

u 

1866 

186 

Etvaston 

a 

1869 

250 

Glasgow 

iC 

1867 

215 

Glencoe 

a 

1869 

1899 

Winnetka 

u 

1869 

3168 

390 


Additional  legislation  on  city  government  has  however  been 
necessary  to  meet  new  conditions  and  new  problems ; and  such 
legislation  has  been  passed  at  every  regular  session  and  at  some 
special  sessions  of  the  General  Assembly.  This  has  included 
amendments  to  the  original  act  of  1872,  other  laws  relating  in  terms 
to  cities  and  villages,  and  further  laws  and  amendments  under  other 
titles  relating  to  municipal  affairs.  The  volume  of  such  legislation 
has  tended  to' increase,  though  far  short  of  the  bulk  of  private  legis- 
lation before  1870.  The  acts  on  cities  and  villages  passed  in  1872 
occupied  56  pages  in  the  session  laws.  In  1917,  there  were  32  acts 
relating  specifically  to  cities  and  villages,  comprising  64  pages  in 
the  session  laws ; and  in  addition  about  40  other  acts  on  municipal 
matters,  covering  115  pages  in  the  session  laws. 

The  total  mass  of  legislation  on  municipal  government  is  now 
of  extensive  bulk  and  complexity.  The  main  act  for  the  incorpo- 
ration of  cities  and  villages,  with  amendments,  fills  79  pages  in 
Hurd’s  Revised  Statutes ; and  other  laws  relating  definitely  to 
cities  and  villages  fill  244  pages  more.  Including  other  laws  on 
municipal  affairs,  probably  a total  of  500  pages  in  the  Revised 
Statutes  relate  to  municipal  government.  This  legislation  more- 
over lacks  systematic  arrangement,  and  presents  a confusing  mass 
of  provisions,  badly  in  need  of  consolidation  and  orderly  arrange- 
ment.11 

Much  of  this  later  legislation  has  been  passed  for  the  purpose 
of  conferring  increased  powers  on  the  municipal  authorities ; and 
the  scope  of  municipal  functions  has  been  steadily  enlarged.  But 
this  has  continued  to  be  done  by  the  method  of  specific  enumera- 
tion of  particular  powers ; and  the  tendency  has  been  for  the  more 
recent  legislation  to  enter  into  more  and  more  detail  in  prescribing 
methods  which  limit  the  scope  of  municipal  action.  This  tendency 
towards  more  detailed  legislation  h$s  inevitably  increased  the  at- 
tempt to  secure  somewhat  different  provisions  for  different  munici- 
palities ; and  has  led  to  the  adoption  of  various  devices  by  means 
of  which  different  laws,  general  in  form,  are  applicable  to  different 
places,  and  the  evasion  to  some  extent  of  the  prohibition  against 
special  legislation. 

The  principal  methods  followed  to  secure  variations  in  the 
laws  for  different  communities  have  been : by  the  passage  of  op- 
tional laws,  applicable  only  in  the  localities  which  adopt  them ; 
by  the  classification  of  municipalities ; and  by  provisions  for  special 
districts  and  authorities  distinct  from  the  city  or  village  govern- 
ment. Some  of  the  measures  illustrating  each  of  these  methods 
may  be  noted. 


11  The  confused  state  of  ‘the  laws  relating’  to  municipal  government  was 
emphasized  at  the  1919  session  of  the  General  Assembly,  when  more  than 
60  acts  were  enacted  in  order  to  readjust  tax  rates  to  the  change  in  the  basis 
for  the  assessment  of  property  from  one-third  to  one-half  of  actual  value. 
Several  of  these  acts,  amending  different  sections  of  the  same  previous  acts, 
might  have  been  combined.  But,  an  examination  shows  the  existence  of  more 
than  50  different  laws  relating  to  local  tax  rates, — 20  relating  to  city  taxes, 
20  to  park  taxes,  4 to  sanitary  districts,  and  5 to  county  taxes. 


391 


Optional  Laws:  Optional  legislation  on  local  government  in 

Illinois  began  at  a comparatively  early  period.  The  general  act  of 
1831  for  the  incorporation  of  towns  was  optional ; and,  as  already 
noted  most  of  the  early  city  charters  in  Illinois  were  subject  to  a 
local  referendum  before  going  into  effect.  The  system  of  township 
government,  authorized  in  1849,  was  optional  for  each  county  in 
the  state.  So  too  the  general  law  of  1872  for  the  incorporation  of 
cities  and  villages  was  applied  only  in  communities  which  voted 
to  adopt  it.  In  these  cases,  however,  each  of  the  optional  laws 
provided  a general  plan  of  local  government. 

Since  the  general  act  of  1872  a number  of  optional  laws  have 
been  passed  providing  for  variations  in  the  general  plan  of  munici- 
pal government.  The  city  courts  act  of  1874  (replaced  by  the  act 
of  1901)  authorized  cities  of  over  3,000  population  which  by  popular 
vote  adopted  the  law,  to  establish  city  courts.  The  city  election 
act  of  1885  (replaced  by  the  act  of  1899)  may  be  adopted  by  any 
city,  village  or  incorporated  town.  The  civil  service  act  of  1895  is 
adoptive  by  any  city.  The  fire  and  police  commissioners  act  of 
1903  may  be  adopted  by  any  city  between  7,000  and  100,000  popu- 
ation.  The  commission  government  law  of  1910  is  applicable  to 
cities  and  villages  of  not  over  200,000  population  which  vote  to 
adopt  it. 

Such  optional  laws  adoptive  by  popular  vote  have  been  up- 
held by  the  Supreme  Court  as  not  in  conflict  with  the  constitu- 
tional provision  against  special  legislation  in  cases  relating  to  the 
cities  and  villages  act  of  1872,  the  city  courts  act  of  1874,  the  city 
election  law  of  1885,  and  the  civil  service  act  of  1895. 12 

On  the  other  hand,  the  city  tax  act  of  1873  was  held  to  be 
invalid  as  special  legislation,  because  while  providing  for  city  as- 
sessors and  collectors,  it  also  authorized  city  councils  by  resolution 
or  ordinance  to  certify  city  taxes  to  the  county  clerk  and  abolish 
city  assessors  and  collectors,  thus  “establishing  dissimilarity  of 
powers  and  modes  of  different  cities  in  the  levy  and  collection  of 
taxes”.13 


Classification  of  Municipalities : A good  many  acts  relating  to 
municipal  offices  in  Illinois  since  the  Constitution  have  not  applied 
to  all  municipalities  but  have  been  limited  to  those  coming  within 
the  scope  of  defining  terms  named  in  the  act.  There  has  been  no 
one  definite  classification  of  municipalities  adopted  as  a basis  for 
such  legislation  ; and  there  has  been  much  less  legislation  of  this 
character  than  in  most  other  states  where  special  legislation  is 
prohibited.  But  various  acts  have  defined  a number  of  different 

12  Potwin  v.  Johnson,  108  111.  70.  79  (1883):  People  v.  Hoffman.  116  111. 
587,594  (1886);  People  v.  Kipley,  171  111.  44  (1897);  Chicago  Tenn.  R.  R.  Co. 
v.  Greer,  223  111.  104  (1906). 

A similar  act  for  a new  county  had  been  previously  upheld  as  not  an 
unconstitutional  delegation  of  legislative  power.  People  v.  Reynolds,  10  111. 
1,  11  (1848). 

13  People  v.  Cooper,  83  111.  585  (1876). 


392 


and  overlapping  classes  of  municipalities,  some  of  which  have  been 
upheld  by  the  supreme  court  and  some  of  which  have  been  held  to  be 
invalid  as  substantially  special  or  local  legislation. 

The  cities  and  villages  act  of  .1872  provided  for  two  classes, 
cities  and  villages.  New  cities  were  limited  to  communities  of 
more  than  1,000  population;  but  larger  places  might  continue  as 
villages.  In  1874  an  act  was  passed  to  enable  towns  and  villages, 
in  counties  having  over  40,000  population,  having  commons  to  dis- 
pose of  the  same.  Some  of  the  optional  laws  already  noted  were 
limited  to  municipalities  within  certain  population  limits.  Two 
acts  were  passed  in  1887  for  firemen’s  and  police  pensions  in  cities 
with  more  than  50,000  population.  An  act  of  1897  provided  for  the 
examination  of  plumbers  in  cities  of  more  than  5,000  population. 
And  many  other  acts  have  been  passed  applying  only  to  cities 
as  classified  by  population  in  the  acts. 

Such  acts  have  been  challenged  in  the  courts  in  a number  of 
cases ; and  some  rules  have  been  laid  down  as  to  valid  and  invalid 
classification.  In  an  early  case  an  act  applying. to  counties  of  100,- 
000  population  and  limited  in  duration  to  six  years  was  held  to  be  in- 
valid, as  a special  act  which  could  only  apply  to  Cook  County.14 

Other  cases  in  which  a classification  based  on  population  has 
been  held  invalid  as  special  or  local  legislation  include : the  horse- 
shoers  act  of  1897,  requiring  a state  license  for  horseshoeing  in  all 
cities  and  towns  of  over  50,000,  and  'in  cities  and  towns  between 

10.000  and  50,000  which  adopt  the  act,  but  not  in  other  cities  and 
towns ; a section  in  the  revenue  act  of  1898  relating  to  the  debt  and 
taxing  powers  of  municipalities  in  counties  over  125,000  population  ; 
acts  of  1903  placing  cities  from  20,000  to  50,000  and  from  20,000  to 

28.000  in  a class,  with  both  larger  and  smaller  cities  put  together 
in  another  class;  and  a provision  in  an  act  of  1903  that  in  cities 
over  20,000  all  road  and  bridge  taxes  be  paid  over  to  the  city.15 

On  the  other  hand,  classification  based  on  population  has  been 
upheld  in  several  of  the  cases  upholding  optional  laws,  and  also  in 
the  following : an  act  of  1881  relating  to  probate  courts  in  counties 
over  70,000  population ; acts  of  1887  and  1899  with  different  pro- 
visions for  cities  over  and  under  50,000  population;  an  act  of  1897 
for  plumbers’  examinations  in  cities  over  5,000;  and  the  jury  com- 
missioners act  of  1903,  applying  to  counties  of  more  than  100,000 
population.  While  the  last  of  these  affected  only  the  county  of 
Cook  it  was  said  that  other  counties  would  soon  reach  the  limit 
named.16 

Classification  of  municipalities  on  other  bases  than  population 
has  been  less  frequent.  In  several  cases,  however,  acts  applying 
to  incorporated  towns,  to  cities,  or  to  villages  and  not  to  similar 


14  Devine  v.  Commissioners  of  Cook  County.  84  111.  590  (1877). 

15  People  v.  Knopf,  183  111.  410  (1900);  Bessette  v.  People,  193  111.  334 
(1901);  D’Hote  v.  Village  of  Milford,  212  111.  418  (1904);  People  v.  Fox,  247  111. 
402  (1910). 

16  Knickerbocker  v.  People,  102  111.  218  (1882);  Cummings  v.  Chicago,  144 
111.  563  (1893);  People  v.  Onahan,  170  I'll.  449  (1897):  Bloomington  v.  Reeves. 
177  111.  161  (1898);  Douglas  v.  People,  225  111.  536  (1907). 


393 


municipalities  with  a different  form  of  organization  have  been  held 
invalid  as  an  unauthorized  discrimination.17 

But,  at  the  same  time,  an  act  imposing  a liability  for  mob 
damages  on  counties  and  cities,  but  not  on  towns  and  villages,  has 
been  held  to  be  invalid.18 

“The  general  rule  is,  that  a classification  of  cities,  towns  and 
villages  of  the  State  by  population,  as  a basis  of  legislation  may  be 
made  if  such  classification  is  based  upon  a rational  difference  of 
situation  or  condition  found  in  the  municipalities  placed  in  the 
different  classes,  otherwise  legislation  based  upon  such  classifica- 
tion is  invalid.”19 

But,  a “classification  can  not  be  adopted  • arbitrarily  upon  a 
ground  which  has  no  foundation  or  difference  of  situation  or  cir- 
cumstances of  the  municipalities  placed  in  the  different  classes. 
There  must  be  some  reasonable  relation  between  the  situation  of 
municipalities  classified  and  the  purposes  and  objects  to  be  attained. 
There  must  be  something  in  the  nature  of  things  which,  in  some 
reasonable  degree  accounts  for  the  division  into  classes.”20  It  is 
difficult,  however,  to  reconcile  all  of  the  cases  on  classification  in 
accordance  with  this  or  any  other  definite  rule. 21 

Under  the  prevailing  methods  of  detailed  legislation  on  munici- 
pal government,  some  arrangement  for  adjusting  statutory  details 
to  the  varying  conditions  of  different  communities  appears  to  be 
needed.  But  the  schemes  of  classification  thus  far  established  in 
Illinois,  while  not  so  absurd  as  in  some  other  states,  show  an  ab- 
sence of  any  consistent  plan  or  policy.  If  detailed  legislation  is 
to  be  continued  so  that  classification  of  municipalities  is  necessary, 
it  should  be  possible  to  devise  a simple  and  definite  system,  which 
may  be  followed  in  all  legislation  where  classification  is  to  be  used. 
This  does  not  mean,  however,  that  a permanent  and  rigid  classifi- 
cation should  be  placed  in  the  constitution. 


Overlapping  Districts:  Further  complexities  and  variations 

in  the  organization  of  local  government  in  Illinois  have  been  brought 
about  by  the  provisions  for  the  creation  of  special  and  overlapping 
districts.  Some  of  these  have  been  in  existence  for  a long  time. 
But  in  later  years  the  number  of  different  kinds  of  such  districts 


17  People  v.  Martin.  178  111.  611  (1899):  People  v.  Fox.  247  111.  402  (1910): 
People  v.  Campbell,  285  111.  557  (1918). 

18  Dawson  Soap  Co.,  v.  Chicago,  234  111.  314  (1908). 

19  J.  Hand  in  Douglas  v.  People,  225  111.  536  (1907). 

20  J.  Cartwright  in  People  v.  Knopf,  183  111.  410  (1900). 

21  In  contrast  with  the  decisions  recognizing  classification  of  municipalities, 
the  supreme  court  has  held,  under  another  clause  of  the  same  section  pro- 
hibiting special  legislation,  that  a fish  law  with  different  provisions  for  Lake 
Michigan  and  the  smaller  lakes  and  rivers  was  invalid. 

'"The  clause  of  our  constitution  * * * was  proposed  * * * for  the 

express  purpose  of  preventing  legislation  for  the ' protection  of  game  and 
fish  by  laws  that  should  not  operate  in  all  the  territory  subject  to  the  juris- 
diction of  the  state.” 

People  v.  Wilcox,  237  111.  421  (1908),  three  judges  dissented.  But,  see 
People  v.  Diekmann,  285  111.  97  (1918),  holding  that  Act  of  1915  amending 
Section  25  of  Fish  and  Game  laws  and  authorizing  the  selection  of  certain 
waters  as  fish  preserves  is  not  invalid  as  local  or  special  legislation. 


394 


has  been  increased,  largely  as  a means  of  evading  the  constitu- 
tional limit  on  local  debt,  but  in  part  also  (by  means  of  optional 
legislation),  as  a method  of  meeting  the  supposed  need  for  a par- 
ticular arrangement  in  certain  communities. 

Under  the  general  system  of  local  government  in  Illinois,  every 
part  of  the  state  is  at  the  same  time  within  the  limits  of  three  local 
government  districts — a county,  a township  (or  road  district)  and  a 
school  district.  The  school  township  is  technically  a district  distinct 
from  the  civil  township ; and  in  a good  many  places  the  geo- 
graphical areas  of  the  two  are  different.  Cities  and  villages  are 
special  districts  usually  within  a county  and  township,  and 
generally  similar  in  area  to  a school  district ; but  each  of  these  areas 
ordinarily  retains  its  identity,  and  the  inhabitant  of  a city  or  village 
thus  owes  allegiance  to  at  least  five  local  governments,  in  addition 
to  the  State  and  the  Nation. 

In  most  other  states,  city  and  town  governments  are  consoli- 
dated ; in  many  cases  the  local  school  management  is  also  combined 
with  the  city  government ; and  in  a number  of  cases  city  and  county 
government  has  been  more  or  less  united. 

Illinois,  however,  has  added  still  further  to  the  number  of  sepa- 
rate and  overlapping  local  authorities  in  many  communities  by 
laws  for  park  districts,  drainage  and  sanitary  districts,  high  school 
districts  and  public  health  districts.  Three  park  districts  were 
created  in  Cook  County  by  special  legislation  before  1870;  and  a 
considerable  amount  of  later  legislation  has  been  enacted  so  framed 
as  to  apply  to  these  districts  and  these  alone.  Two  laws  for  the 
creation  of  park  districts  were  passed  in  1893  and  1895 ; and  there 
has  been  additional  park  legislation  for  cities  not  over  15,000  popu- 
lation (1899),  for  cities  of  less  than  50,000  (1907),  and  for  town  and 
township  parks  (1911). 

There  are  several  laws  relating  to  drainage  districts  for  agri- 
cultural purposes ; and  four  other  optional  acts  have  been  passed 
(in  1899,  1907,  1911  and  1917)  for  the  formation  of  sanitary  districts 
for  the  disposal  of  sewage.  Each  of  these  appears  to  have  been 
prepared  with  reference  to  a particular  locality.  Optional  laws  for 
the  organization  of  special  high  school  districts  were  enacted  in 
1905  and  1911.  In  1917  another  optional  act  was  passed  for  the 
creation  of  public  health  districts. 

One  factor  in  the  formation  of  the  many  types  of  local  districts 
has  been  the  fact  that  existing  local  areas  were  not  always  the 
most  suitable  for  certain  purposes.  But  in  a good  many  cases 
several  such  districts  cover  substantially  the  same  territory ; and 
the  principal  reason  for  their  formation  has  been  that  as  each  dis- 
trict is  a separate  municipal  corporation,  each  can  borrow  up  to  the 
constitutional  limit  on  indebtedness ; while  it  has  also  been  easier 
to  secure  statutory  authority  to  levy  taxes  for  such  new  districts 
than  to  increase  the  taxing  power  of  the  older  authorities. 

As  a result  of  these  several  devices  there  is  a good  deal  of  what 
is  in  substance  special  legislation  for  certain  communities ; and  the 
effect  of  such  legislation  has  been  to  add  much  to  the  complexity 


395 


of  local  government  in  Illinois,  and  to  increase  the  number  of  local 
elections  and  elective  offices.  Under  the  several  laws  the  same  area 
and  population  may  be  at  the  same  time  in  nine,  or  possibly  more, 
distinct  local  government  districts : county,  township,  school  town- 
ship, city  or  village,  school  district,  high  school  district,  park  district, 
sanitary  or  drainage  district  and  public  health  district.  The  most 
complex  situations  are  in  the  East  Side  Levee  district  including  East 
St.  Louis  and  neighboring  territory,  and  in  Chicago  and  Cook  County. 

In  addition  to  the  interlocking  jurisdiction  of  overlapping  dis- 
tricts, further  complexities  have  been  introduced  by  creating 
authorities  with  a special  and  sometimes  almost  independent  legal 
status.  Public  libraries  are  under  the  control  of  boards  of  directors, 
appointed  in  cities  by  the  mayor  with  the  approval  of  the  city 
council,  and  elected  in  towns,  villages  and  townships.  In  cities 
which  have  adopted  the  city  election  act,  there  are  boards  of  elec- 
tion commissioners  appointed  by  the  county  judge,  and  with  re- 
lations both  to  the  county  and  city  government. 


Special  Legislation  for  Chicago:  A good  deal,  though  by  no 

means  all,  of  the  legislation  which  permits  variations  in  local  govern- 
ment has  been  enacted  with  particular  reference  to  conditions  in  Chi- 
cago. With  more  than  twenty  times  the  population  of  the  next  largest 
city  in  the  State  serious  local  problems  have  arisen  there  long  before 
they  were  evident  in  other  communities.  Whether  or  not  these  prob- 
lems could  have  been  met  by  a more  liberal  policy  of  general  legisla- 
tion, under  the  prevailing  methods  of  piece-meal  and  detailed  legisla- 
tion there  has  been  a pressing  demand  for  many  laws  to  meet  the  local 
conditions  in  the  metropolis. 

Some  recognition  of  this  situation  appears  in  the  Constitution  of 
1870,  in  the  special  provisions  for  the  courts  and  county  board  of 
Cook  County.  The  same  factors  explain  two  of  the  seven  amend- 
ments to  that  Constitution  which  have  been  adopted.  One  of  these 
(Section  13  of  Article  IX)  adopted  in  1890,  permitted  Chicago  to  issue 
bonds  in  aid  of  the  World’s  Columbian  Exposition  in  excess  of  the 
debt  previously  authorized.  The  other  (Section  34  of  Article  IV) 
adopted  in  1904,  authorized  local  or  special  legislation  for  the  muni- 
cipal government  of  Chicago,  with  the  qualification  that  no  such  law 
“shall  take  effect  until  consented  to  by  a majority  of  the  legal  voters 
of  said  city  voting  on  the  question  at  any  election”. 

Under  this  amendment  some  special  legislation  for  Chicago  has 
been  adopted.  The  most  important  measures  adopted  have  been  acts 
increasing  the  term  of  the  mayor  to  four  years,  and  establishing  the 
municipal  court.  A comprehensive  charter  was  framed  by  a local 
convention ; but  was  so  modified  by  the  General  Assembly  before  pas- 
sage (in  1907)  that  it  was  defeated  at  the  local  referendum.  Another 
act  (of  1915)  for  the  consolidation  of  the  park  districts  and  some 
other  local  authorities  with  the  city  has  also  failed  to  receive  local 
approval. 


396 


It  should  also  be  noted  that  the  present  constitutional  provision 
does  not  authorize  the  consolidation  of  county  government  with  that 
of  other  local  authorities,  while  it  contains  a number  of  detailed  re- 
quirements which  limit  what  can  be  done. 


Local  Control  of  Street  Railways:  Section  4 of  Article  XI  of 

the  Constitution  of  1870  provides  that : 

“No  law  shall  be  passed  by  the  General  Assembly  granting  the 
right  to  construct  and  operate  a street  railroad  within  any  city,  town 
or  incorporated  village,  without  requiring  the  consent  of  the  local 
authorities  having  the  control  of  the  street  or  highway  to  be  occupied 
by  such  street  railroad.”22 

As  construed  by  the  Supreme  Court  in  the  earlier  cases  arising 
under  this  section,  it  appeared  to  vest  in  the  local  authorities  a large 
measure  of  control  over  street  railroads.  In  Byrne  v.  Chicago  General 
Railway  Co.,  it  was  decided : 

“That  the  use  of  the  streets  in  the  cities  of  this  state  by  street  car 
companies  is  subject  to  the  consent  of  the  common  council,  and  that 
in  granting  such  consent,  the  common  council  may  impose  such  con- 
ditions as,  in  its  opinion,  the  public  benefit  may  require.  Under  the 
constitution  not  even  the  legislature  has  the  power  to  grant  the  right 
to  construct  and  operate  a street  railroad  within  a city  without  the 
consent  of  its  common  council.” 

But  this  was  somewhat  qualified  by  the  further  statement  that : 
“They  [the  municipal  authorities]  may  impose  any  conditions  not 
illegal  and  not  forbidden  by  the  statute.”23 

In  the  later  case  of  Venner  v.  Chicago,  which  upheld  the  street 
railway  ordinances  of  1907,  providing  for  the  combination  and  joint 
operation  of  street  railway  lines  in  Chicago,  it  was  stated  that : 

“The  constitution  commits  to  the  city  the  control  of  the  operation 
of  street  railways  in  its  streets.  It  is  for  the  city  to  determine  whether 
such  operation  shall  be  competitive  or  monopolistic ; to  grant  the  priv- 
ilege to  many  or  confine  it  to  one.”24 

This  statement  was  quoted  and  re-affirmed  in  the  case  of  the 
People  v.  Chicago,  upholding  the  unification  ordinance  of  1913.25 

In  the  meantime,  however,  the  opinion  had  been  expressed  that 
this  section  of  the  constitution  did  not  give  to  cities  the  exclusive 
control  of  their  streets. 

22  This  section  appears  to  have  been  the  outcome  of  opposition  to  the  so-called 
ninety-nine  year  act,  passed  in  1865,  over  the  veto  of  Governor  Oglesby,  extend- 
ing the  rights  of  street  railways  in  Chicago.  Early  in  the  convention  of  1870 
two  resolutions  were  introduced,  one  by  Mr.  Eldridge  and  one  by  Mr.  Anthony, 
each  including  substantially  this  provision.  One  of  these  also  provided  for  the 
consent  of  property  owners,  and  the  other  provided  that  street  railroads  should 
pay  their  share  of  special  assessments  for  street  improvements.  The  Committee 
on  Miscellaneous  Corporations  reported,  the  provision  for  the  consent  of  local 
authorities,  and  this  was  approved  by  the  convention  without  debate.  The  Com- 
mittee on  Revision  and  Adjustment  added  the  word  “requiring”,  so  that  the 
consent  could  be  given  after  the  passage  of  the  law,  and  in  this  form  the  section 
was  adopted.  Debates  and  Proceedings,  I,  151,  154 ;II,  1664,  1667,  1837. 

23  Byrne  v.  Chicago  General  Railway  Co.,  169  111.  75,  83. 

24 Venner  v.  Chicago,  258  III.  523,  546  (1913) 

25  People  v.  Chicago,  270  111.  188,  202  (1915) 


397 


“While  a municipal  corporation  is  vested  with  the  control  of  the 
streets  within  its  corporate  limits,  such  control  is  not  exclusive,  but 
is  subject  to  the  superior  control  which  may  be  exercised  by  the  State 
at  any  time.”26 

Later,  in  the  case  of  the  Public  Utilities  Commission  v.  The  C. 
& W.  T.  Ry.,  upholding  the  Public  Utilities  Act  of  1913,  it  was  held 
that  Section  4 of  Article  XI,  “is  simply  a limitation  of  the  general 
powers  of  the  legislature,  and  in  one  particular  only  * * * that 

section  of  the  constitution  does  not,  by  implication  or  otherwise,  at- 
tempt to  divest  the  State  of  its  paramount  authority  and  control  of 
streets  and  highways.”27 

In  the  more  recent  case  of  Chicago  v.  O’Connell,  it  has  been  more 
positively  set  forth  that  section  4 of  Article  XI  does  not  restrict  the 
police  power  of  the  State,  which  may  be  exercised  even,  against  the 
provisions  of  agreements  made  by  a city*  and  a street  railway  in  grant- 
ing its  consent. 

“The  statement  * * * that  the  constitution  commits  to  the 

city  the  control  of  the  operation  of  street  railways  in  its  streets  merely 
means  that  the  constitution  has  conferred,  upon  the  city,  power  to  de- 
termine whether  street  railways  shall  be  operated  upon  the  streets  of 
the  city,  and  if  so  upon  what  streets.  To  this  extent,  and  no  further, 
the  constitution  has  committed  to  the  city  the  control  of  the  operation 
of  street  railways  in  its  streets.  * * * 

“The  regulation  of  public  utilities  is  one  phase  of  the  exercise  of 
the  police  power  of  the  State.  * * * The  settlement  ordinance  and 
the  unification  ordinance  * * * constitute  binding  contracts  be- 
tween the  city  and  the  railway  companies  * * * so  far  as  the  con- 

tracts relate  to  matters  which  do  not  affect  the  public  safety,  welfare, 
comfort  or  convenience. 

“But  a municipality  can  not  contract  away  the  right  to  exercise 
the  police  power  to  secure  and  protect  the  morals,  safety,  health,  order, 
comfort  or  welfare  of  the  public,  nor  limit  or  restrain  by  any  agree- 
ment the  full  exercise  of  that  power.”28 


General  Situation:  Under  the  present  situation,  local  com- 

munities in  Illinois  are  substantially  protected  from  arbitrary  inter- 
ference by  special  legislation,  while  through  optional  laws  there  is 
some  field  of  choice  with  reference  to  the  forms  of  local  organization. 
But  complaints  are  made  that  it  is  difficult  and  sometimes  impossible 
to  secure  adequate  authority  to  deal  with  local  problems ; and  it  is 
urged  that  there  should  be  a larger  field  of  municipal  freedom  and 
positive  authority  both  with  reference  to  the  forms  of  organization 
and  the  functions  of  local  government.  This  demand  for  a greater 
degree  of  municipal  home  rule  aims  at  constitutional  provisions  similar 
to  those  now  in  force  in  thirteen  other  states. 

26  Chicago  S.  T.  Co.  v.  I.  C.  R.  R..  246  111.  146,  155  (1910). 

27  Pub.  Ut.  Co.  v.  C.  & W.  I.  Ry.  275  111.  555,  570  (1916). 

28  Chicago  v.  O’Connell,  278  111.  591,  601-607  (1917)  recently  affirmed  by  the 
United  States  Supreme  Court.  See  Chicago  v.  Chicago  U.  T.  Co..  199  111.  259 
(1902);  Chicago  v.  Chicago  City  Ry.  Co.,  272  HI..  245  (1916). 


398 


Municipal  powers  are  also  handicapped  by  the  constitutional  re- 
strictions on  taxation  and  debt,  which  will  be  considered  more  fully  in 
another  pamphlet.  The  requirement  of  uniformity  in  taxation  has 
prevented  changes  in  the  system  of  taxation.  The  debt  limit  is  lower 
than  in  other  large  states;  and  its  operation  has  been  changed  from 
time  to  time  by  the  creation  of  overlapping  taxing  districts,  and  by 
changes  in  the  basis  for  the  assessment  of  property,  from  a fifth,  to  a 
third,  and  (in  1919)  to  one-half  of  the  so-called  full  value. 


III.  STATUS  OF  MUNICIPALITIES  IN  OTHER  STATES. 


State  and  Legislative  Supremacy:  The  prevailing  rule  in 

American  states  as  to  the  basic  legal  relation  between  the  state  and 
municipalities  is  the  same  as  in  Illinois.  Municipal  corporations  are 
created  by  the  state,  and  derive  all  their  powers  from  the  state ; and 
are  subject  to  the  control  of  the  state  legislature,  except  as  limited  by 
the  state  constitution.  This  rule  is  not  only  laid  down  by  the  supreme 
courts  of  the  States;  but  has  also  been  recognized  by  the  Supreme 
Court  of  the  United  States. 

“Municipal  corporations  are  mere  instrumentalities  of  the  state  for 
the  more  convenient  administration  of  the  state  government.  Their 
powers  are  such  as  the  legislature  may  confer,  and  these  may  be 
enlarged,  abridged  or  entirely  withdrawn  at  its  pleasure.  * * * 

There  is  no  contract  between  the  state  and  the  public  that  the  charter 
of  a city  shall  not  be  at  all  times  subject  to  legislative  control/’1 

In  a few  states,  however,  the  courts  have  declared  a doctrine  of 
an  inherent  right  of  local  self-government,  based  on  the  general  prin- 
ciples and  spirit  of  American  government.  This  was  set  forth  by 
Judge  Cooley  in  Michigan  in  1871 ; and  has  been  followed  in  a few 
cases  in  that  and  some  other  states.  But  the  application  of  this  rule 
has  been  narrowly  limited  even  in  the  states  where  it  has  been  an- 
nounced ; and  the  general  principle  both  of  law  and  practice  is  that  the 
only  limitations  on  legislative  action  are  to  be  found  in  constitutional 
provisions.2 


Constitutional  Limitations:  Under  the  earlier  state  constitu- 

tions, with  few  restrictions  of  any  sort  on  the  legislature,  and  none 
specifically  protecting  municipal  corporations,  the  power  of  the 
legislature  over  such  local  governments  was  practically  unlimited. 
In  later  constitutions  and  amendments  in  other  states,  as  in  Illinois, 
not  only  have  provisions  been  adopted  on  other  subjects  which  in- 
directly affect  municipal  corporations,  but  also  definite  provisions 
relating  to  municipal  government.  Some  of  these  have  aimed  at 
restricting  legislative  control  over  local  administration  by  providing 
for  the  local  selection  of  officers  and  by  the  prohibition  of  special 
legislation.  At  the  same  time,  the  same  or  other  provisions  have 

1 Justice  Field,  in  Meriwether  v.  Garrett,  102  U.  S.  472  (1880);  See  U.  S.  v. 
R.  R.  Co,  17  Wall.  322  (1872);  Conns  v.  Lucas,  93  U.  S.  108  (1876).  But  lawful 
contracts  of  such  a corporation  may  he  enforced  by  the  U.  S.  courts  against  its 
private  property  not  held  for  public  purposes. 

2 People  v.  Hurlbut,  24  Mich.  44  (1871). 


400 


authorized  or  imposed  restrictions  on  municipalities,  especially  with 
reference  to  debt  and  taxation. 

A few  of  the  first  state  constitutions  provided  for  the  local 
election  of  some  county  officers;  and  later  constitutions  have  pro- 
vided for  an  increasing  list  of  elective  county  officers.  Except  in 
the  North  Atlantic  group  of  states,  most  state  constitutions  now 
have  some  restrictions  on  the  formation  of  new  counties. 

One  of  the  earliest  provisions  relating  to  cities  was  an  amend- 
ment to  the  Massachusetts  Constitution,  adopted  in  1821,  authorizing 
the  legislature  to  constitute  municipal  or  city  governments,  but 
limiting  this  to  towns  of  12,000  inhabitants,  and  requiring  the  con- 
sent of  a majority  of  those  voting  at  a town  meeting. 

In  New  York  state,  city  mayors  had  in  early  times  been  ap- 
pointed by  the  state ; but  constitutional  amendments  in  1833  and 
1839  provided  for  their  local  election.  In  the  New  York  convention 
and  constitution  of  1846  some  attention  was  given  to  questions  of 
municipal  government.  The  prohibition  of  special  legislation  was 
proposed ; but  in  the  revised  constitution,  while  this  prohibition 
was  applied  to  corporations  in  general,  an  exception  was  made  in 
the  case  of  those  for  municipal  purposes.  The  following  provisions 
were  adopted  relating  to  incorporation,  taxation  and  debt : 

“Article  VIII,  Sec.  9.  It  shall  be  the  duty  of  the  legislature  to 
provide  for  the  incorporation  of  cities  and  incorporated  villages, 
and  to  restrict  their  power  of  taxation,  assessment,  borrowing 
money,  contracting  debts,  and  loaning  their  credit,  so  as  to  prevent 
abuses  in  assessments  and  in  contracting  debt  by  such  municipal 
corporations”. 

Section  2 of  Article  X provided  for  the  local  election  or  ap- 
pointment of  county,  city,  town  and  village  officers.3 

These  same  provisions  were  adopted  in  the  first  Wisconsin 
Constitution  of  1848 ; and  provisions  similar  to  the  first  of  these 
have  since  been  adopted  in  a number  of  other  states.  The  revised 
constitutions  of  Virginia  and  Kentucky,  adopted  in  1850,  each  con- 
tained provisions  for  the  local  election  or  appointment  of  municipal 
officers.4 


Restrictions  on  Special  Legislation : Constitutional  provisions 

prohibiting  special  legislation  for  corporations,  “except  for  municipal 
purposes”,  were  adopted  by  Louisiana  in  1845,  New  York  in  1846 
and  California  in  1849.  The  California  Constitution  further  pro- 
vided that  “The  Legislature  shall  establish  a system  of  county  and 
town  governments,  which  shall  be  as  nearly  uniform  as  practicable 
throughout  the  state.”  5 


3 Lincoln,  Constitutional  History  of  New  York  II.  6,  198-203,  208. 

‘Wisconsin  Constitution  of  1848,  Art.  XI,  Sec.  3;  Art.  XIII,  Sec.  9.  Virginia 
Constitution  of  1850,  Sec.  34.  Kentucky  Constitution  of  1850,  Art.  VI,  Sec.  6. 

5 New  York  Constitution  of  1846,  Art.  VIII,  Sec.  1.  California  Constitution 
of  1849.  Art.  XI.  Sec.  4. 


401 


The  Indiana  Constitution  of  1851  also  contained  a prohibition 
on  special  legislation  for  corporations  without  the  exception  of 
municipal  corporations,  as  follows : 

“Corporations,  other  than  banking,  shall  not  be  created  by 
special  act,  but  may  be  formed  under  general  laws.”  (Art.  XI, 
Sec.  13). 

It  has  been  held  by  the  Supreme  Court  of  Indiana  that  this 
section  applies  to  municipal  corporations.0 

More  definite  provisions  prohibiting  special  legislation  for 
municipalities  were  included  in  the  Ohio  Constitution  of  1851,  as 
follows : 

“Art.  XIII,  Sec.  1.  The  General  Assembly  shall  pass  no  special 
act  conferring  corporate  powers.” 

“Sec.  6.  The  General  Assembly  shall  provide  for  the  organiza- 
tion of  cities  and  incorporated  villages,  by  general  laws,  and  re- 
strict their  power  of  taxation,  assessment,  borrowing  money,  con- 
tracting debts  and  loaning  their  credit,  so  as  to  prevent  the  abuse 
of  such  power.” 

“Art.  II,  Sec.  26.  All  laws  of  a general  nature  shall  have  a 
uniform  operation  throughout  the  state ; nor  shall  any  act,  except 
such  as  relates  to  public  schools,  be  passed,  to  take  effect  upon 
the  approval  of  any  other  authority  than  the  General  Assembly  ex- 
cept as  otherwise  provided  in  this  constitution.” 

It  .will  be  noted  that  the  last  quoted  provisions  prevented  the 
practice  of  optional  legislation,  as  in  Illinois. 

Following  Ohio,  many  other  states  have  adopted  constitutional 
provisions  against  special  legislation  on  municipal  government. 
Half  a dozen  states  had  such  provisions  before  the  Illinois  Constitu- 
tion of  1870  was  adopted.7 

Ten  other  states  adopted  similar  provisions  in  the  decade  1870- 
1880. 8 

Eleven  more  states  followed  from  1889  to  1895  9 and  six  others 
since  1900. 10 

Altogether  there  are  now  thirty  states  in  which  the  con- 
stitutions require  general  laws  for  municipalities  or  definitely  pro- 
hibit all  special  legislation  for  cities  and  other  municipalities,  or  . 
have  provisions  which  the  courts  have  construed  to  have  the  same 
effect.  Four  other  states  prohibit  special  legislation  for  the  smaller 
cities  or  villages  in  the  state.* 11 

Two  states,  not  included  above,  and  several  of  those  already 
noted,  impose  other  restrictions  on  the  passage  of  special  legislation. 

6 Town  of  Longview  v.  City  of  Crawfordsville,  164  Ind.  117. 

7 Iowa,  1857;  Kansas,  1859;  Florida,  1865;  Nebraska,  1867;  and  Arkansas,  1868. 

8 Illinois,  1870;  West  Virginia,  1872;  Texas  and  Pennsylvania,  1873;  New 
York  (for  villages)  1874;  New  Jersey  and  Missouri,  1875;  Colorado,  1876; 
Louisiana  and  California,  1879. 

9 Idaho,  North  and  South  Dakota,  Wyoming  and  Washington  in  1889; 
Mississippi  in  1890;  Kentucky,  Minnesota  and  Wisconsin  in  1892;  South  Carolina 
and  Utah  in  1895. 

10  Alabama,  1902;  Oregon,  1906;  Oklahoma,  1907;  Michigan,  1908;  Arizona 
and  New  Mexico,  1911. 

11  Louisiana  (except  municipal  corporations  of  over  25,000  and  enumerated 
special  districts) ; New  York  (villages  only) ; Texas  (cities  and  towns  of  5,000 
or  less);  and  West  Virginia  (incorporating  cities,  towns  or  villages,  or  amending 
the  charter  of  any  city,  town  or  village  of  less  than  2,000). 


402 


There  are  no  prohibitions  on  special  legislation  on  municipal 
government  in  twelve  states.12 


Results  under  Prohibition  on  Special  Legislation:  Constitu- 

tional requirements  for  general  laws  on  municipal  government  and 
prohibitions  on  special  legislation  have  greatly  reduced  the  amount 
of  legislation  for  particular  municipalities,  and  have  checked  legis- 
lative interference  in  local  affairs.  But  laws  applying  only  to  par- 
ticular communities  have  continued  to  be  enacted  to  a considerable 
extent,  as  in  Illinois,  by  the  classification  of  municipalities,  or  by 
the  subject  matter  of  the  laws.  This  has  been  due,  primarily,  to  the 
continued  practice  of  detailed  legislation,  under  which  the  local 
communities  have  often  asked  for  variations  from  the  general  pro- 
visions ; while  at  times  political  and  other  factors  in  the  legisla- 
tures have  led  to  active  interference  with  local  government. 

In  a number  of  states  a comparatively  simple  system  of  classifi- 
cation for  municipalities  has  been  adopted,  with  from  three  to  five 
classes.  Even  in  such  cases  the  largest  city  in  the  state  is  usually 
in  a class  by  itself,  and  legislation  for  it  is  substantially  special  in 
character.  But  such  a general  classification  has  often  been  sup- 
plemented in  subsequent  laws  prepared  with  reference  to  particular 
communities.  The  device  of  classification  was  most  highly  elabo- 
rated in  Ohio,  where  before  1902  there  were  eleven  classes  and 
grades  and  each  of  the  eight  principal  cities  in  the  state  was  in  a 
distinct  class  or  grade.  This  situation  eventually  led  to  a decision 
of  the  Supreme  Court  in  that  state,  holding  the  existing  scheme  of 
classification  to  be  invalid  as  an  evasion  of  the  State  Constitution.13 

As  a result  of  this  decision,  a general  law  applicable  to  all 
cities  was  passed ; but  dissatisfaction  with  the  detailed  requirements 
of  this  law  was  an  important  factor  in  the  demand  which  led  to  the 
adoption  of  the  present  system  of  municipal  home  rule  in  that  state. 


Other  Methods  for  Limiting  Legislative  Control : A number  of 
states  have  adopted  other  methods  for  dealing  with  special  legislation. 
The  North  Carolina  constitution  formerly  contained  a provision  re- 
quiring public  notice  of  special  laws;  but  this  has  been  omitted  from 
the  present  constitution.  The  Pennsylvania  constitution  of  1873  re- 
quires 30  days  previous  public  notice  before  the  introduction  of  any 
local  or  special  bill.  Similar  provisions  have  been  adopted  in  Arkansas 
(1874),  Missouri  and  New  Jersey  (1875),  Texas  (1876),  Georgia 
1877),  Alabama,  Louisiana,  Florida  (1885)  and  Oklahoma,  (1907). 
In  some  of  these  states,  the  courts  have  held  that  these  provisions  are 
merely  directory ; and  that  passage  of  a special  or  local  act  is  assumed 

12  The  six  New  England  states,  and  Delaware,  Maryland,  Florida,  Tennessee, 
Montana,  and  Nevada. 

13  State  v.  Jones,  66  Ohio  S.  453  (1902). 


403 


to  determine  that  the  requirements  have  been  met.  To  meet  this,  the. 
Alabama  constitution  of  1901  provides  that  affidavit  of  notice  shall  be 
spread  upon  the  journal.  The  Oklahoma  constitution  requires  verified 
proof  of  publication  to  be  filed  with  the  Secretary  of  State. 

The  Mississippi  constitution  of  1890  provides  for  a standing  com- 
mittee in  each  house  on  local  and  private  legislation,  and  requires  for 
the  passage  of  special  and  private  bills  an  affirmative  recommendation 
of  the  committee,  or,  if  the  committee  reports  adversely,  a majority  of 
all  the  members  elected.  The  Virginia  constitution  of  1902  provides 
for  a joint  standing  committee  to  which  all  local,  special  or  private 
bills  shall  be  referred  for  report  as  to  the  need  for  special  legislation, 
before  reference  to  the  regular  committees  of  each  house. 

The  New  York  Constitution  of  1894  groups  cities  into  three 
classes,  according  to  population ; and  provides  that  any  bill  for  a 
special  city  law  (defined  as  one  relating  to  less  than  all  the  cities  of  a 
class)  after  it  has  passed  both  branches  of  the  legislature,  must  be 
transmitted  to  the  mayor  of  such  city ; and  if  not  accepted  by  the 
mayor  (in  cities  of  the  first  class)  or  by  the  mayor  and  council,  it 
must  be  passed  again  by  the  legislature  and  subject  to  the  action  of  the 
governor  before  it  becomes  law.  This  procedure  has  prevented  the 
enactment  of  a good  deal  of  special  legislation  not  accepted  by  the 
cities;  but  in  some  cases  special  acts  have  been  enacted  against  the 
objection  of  the  cities  concerned;  and  there  is  of  course  nc  positive 
grant  of  power  in  this  provision.14 

A more  effective  local  veto  is  provided  by  the  local  referendum 
required  on  special  legislation  for  Chicago  under  the  amendment  of 
1904  to  the  Illinois  Constitution.  A similar  provision  of  broader 
application  is  that  in  the  Michigan  Constitution  of  1908  that  no  local 
or  special  act  shall  take  effect  until  approved  by  a majority  of  the 
electors  voting  thereon  in  the  district  to  be  affected.15 


14  From  1895  to  1915,  a total  of  142  local  vetoes  were  overridden  by  the 
legislature;  from  1902  to  1914,  524  local  votes  were  effective.  After  1910,  the 
number  of  measures  passed  over  the  local  veto  was  much  reduced,  as  shown  by 


the  following  statement: 

Total  number  of  bills  introduced,  1910  to  1915 13,508 

Total  number  of  special  city  bills  introduced 2,776 

Number  of  special  city  bills  defeated  in  legislature 1,353 

Number  of  special  city  bills  passed  by  legislature 1,423 

Number  of  special  city  bills  passed  and  accepted  by  cities 1,176 

Number  of  special  city  bills  passed  but  not  accepted  by  cities 247 

Number  of  special  city  bills  accepted  by  cities  but  vetoed  by  the  governor.  201 
Number  of  special  city  bills  not  accepted  by  cities  but  repassed  by  the 

legislature  . . , 11 

Number  of  special  city  bills  repassed  over  city’s  veto  but  defeated  by  gov- 
ernor’s veto  3 

Number  of  special  city  bills  not  accepted  by  cities  which  became  law 8 

Total  number  of  special  city  bills  which  became  law 983 

Total  number  of  all  bills  which  became  law 4,260 


Seth  Low  in  New  York  Constitutional  Convention  (1915),  Revised  Record 
II,  1962;  Preliminary  Brief  for  Home  Rule,  by  the  Citizens  Union,  p.  11. 

15  Constitution  of  1908,  Art.  V,  Sec.  30.  By  an  amendment  adopted  November 
1916,  exception  is  made  for  acts  repealing  local  or  special  acts  in  effect  January 
1,  1909,  and  receiving  a two-thirds  vote  of  the  legislature. 


404 


Optional  Laws : One  method  for  partially  meeting  the  demand 
for  local  freedom  as  to  local  government,  and  also  for  avoiding  the 
constitutional  provisions  against  special  legislation,  has  been  by 
the  enactment  of  optional  laws,  applicable  to  cities  which  adopt 
them  by  popular  vote.  This  may  be  considered  an  extension  of  the 
principle  of  the  referendum  on  special  charters. 

Reference  has  already  been  made  to  the  use  of  this  method 
in  Illinois,  in  connection  with  township  government,  for  the  estab- 
lishment of  special  districts,  and  for  some  features  of  city  govern- 
ment. Similar  optional  laws  have  been  passed  in  other  states. 
Beginning  with  Iowa  and  Kansas  in  1907,  the  commission  form 
of  city  government  has  been  authorized  in  about  twenty  states16  by 
optional  general  laws ; and  more  recently  optional  city  manager 
laws  have  been  passed  in  several  states. 

Within  the  last  few  years  a number  of  states  have  passed  laws 
providing  a series  of  optional  plans  of  municipal  organization.  An 
Ohio  law  of  1913  provides  three  alternative  plans — the  commission 
form,  the  city  manager  plan,  and  the  mayor  and  council  plan.  A 
New  York  law  of  1914  provided  for  six  optional  forms  of  city  gov- 
ernment. 17  Under  a Massachusetts  law  of  1915  any  city,  except 
Boston,  may  adopt  one  of  four  plans — a mayor  and  council  elected 
at  large,  a mayor  and  council  elected  partly  from  wards,  the  com- 
mission form,  or  the  city  manager  plan.  Similar  laws  with  op- 
tional plans  of  municipal  organization  were  enacted  by  Virginia 
in  1944  and  North  Carolina  in  1917. 

Such  laws  offering  a definite  series  of  alternative  and  presum- 
ably well  considered  general  plans  of  municipal  organization,  present 
an  advance  on  the  piecemeal  optional  legislation  in  Illinois.  But 
they  do  not  grant  cities  full  authority  to  work  out  their  own  plans 
of  governmental  organization. 


Financial  Restrictions : Along  with  the  tendency  in  state  con- 
stitutions to  restrict  special  legislation,  there  has  been  another  to 
restrict  the  financial  powers  of  municipalities.  Beginning  with 
New  York  in  1846,  a number  of  states  adopted  constitutional  pro- 
visions specifically  providing  that  the  legislature  should  restrict  the 
powers  of  municipal  corporations  to  tax,  borrow  money,  contract 
debts,  or  loan  their  credit.  In  1851,  Indiana  prohibited  counties 
from  loaning  their  credit  or  subscribing  to  the  stock  of  corpora- 
tions; and  Ohio  placed  a similar  prohibition  on  counties,  cities, 
towns  and  villages.  Similar  or  partial  limitations  of  the  same  kind 
were  imposed  in  several  other  states  before  1870 ; and  after  that 
year  (as  in  Illinois)  by  additional  states.  After  1870  constitutional 
limitations  on  the  total  amount  of  municipal  debt  were  adopted  in 

18  Iowa,  Kansas,  North  and  South  Dakota,  1907;  Mississippi,  1908;  New 
Mexico,  Minnesota,  Texas  and  Wisconsin,  1909;  Illinois,  Kentucky,  Louisiana  and 
South  Carolina,  1910;  Alabama,  California,  Idaho,  Montana,  New  Jersey,  Utah, 
Washington  and  Wyoming,  1911. 

17  Held  constitutional,  Cleveland  v.  City  of  Watertown,  222  N.  T.  159  (118 
N.  E.  500)  (1917). 


405 


some  states ; and  such  debt  limits  are  now  found  in  the  constitu- 
tions of  28  states.  Nebraska  and  South  Carolina  have  maximum 
limits  for  the  aggregate  debts  of  all  local  districts. 18 

Mainly  since  1900,  there  has  been  another  tendency  toward 
relaxing  the  restrictions  on  municipal  debt  by  authorizing  loans, 
beyond  the  ordinary  limit,  for-  waterworks  and  other  public  im- 
provements and  utilities.  About  twenty  states  now  authorize  such 
additional  loans,  most  commonly  for  waterworks,  sewers  and  light- 
ing plants.  South  Dakota  in  1902  authorized  loans  for  street  rail- 
ways; Texas  in  1904  authorized  loans  for  irrigation,  drainage  and 
navigation  works  and  roads.  The  Virginia  constitution  of  1902 
exempts  loans  for  waterworks  and  other  revenue  undertakings 
from  the  debt  limit.  New  York  has  adopted  a series  of  amend- 
ments, beginning  in  1905,  granting  New  York  City  extensive  bor- 
rowing powers  for  such  revenue  undertakings  as  rapid  transit  lines 
and  public  docks ; and  similar  powers  have  been  provided  by 
'Pennsylvania  in  1914  and  1918. 

The  Oklahoma  constitution  authorizes  loans  for  public  utilities, 
subject  to  a referendum  by  the  tax  payers.  Michigan  in  1908  and 
Ohio  in  1912  authorize  (outside  the  ordinary  debt  limit)  loans  for 
public  utilities  secured  by  mortgage  on  the  plant.  In  Wisconsin 
an  amendment  has  passed  one  legislature,  in  1919,  authorizing  ad- 
ditional loans  for  public  utilities ; and  the  Wyoming  legislature  in 
1919  has  submitted  an  amendment  authorizing  loans  for  school 
buildings. 

In  some  states,  debt  limits  and  other  restrictions  are  estab- 
lished by  statute;  and  municipal  tax  rates  are  in  all  states  subject 
to  statutory  control. 

Specific  constitutional  debt  limits  have  not  proved  a satis- 
factory method  of  control.  There  is  no  agreement  as  to  a proper 
limit ; arbitrary  percentages  are  not  adapted  to  different  conditions ; 
and  their  effect  is  altered  by  the  creation  of  overlapping  districts 
and  by  variations  in  the  basis  of  assessment,  which  may  be  changed 
from  time  to  time  as  in  Illinois. 


1S  Massachusetts  Constitutional  Convention  Bulletin  No.  14. 


406 


IV.  MUNICIPAL  HOME  RULE. 


Legislative  Home  Rule : In  contrast  with  the  prevailing 

practice  of  detailed  legislation  on  municipal  government,  there  are 
a few  instances  where  state  legislatures  have  enacted  measures 
providing  in  comprehensive  terms  that  cities  should  have  power  to 
amend  their  charters  or  adopt  new  charters.  Thus  the  Iowa  Act 
of  1858  for  the  incorporation  of  cities  and  towns,  passed  after  the 
prohibition  of  special  legislation  in  that  state,  provides  for  the 
amendment  of  existing  city  or  town  special  charters  on  petition  of 
one-fourth  of  the  voters,  or  submission  by  the  local  legislative 
body,  and  approved  by  a referendum  of  voters.  This  Act  was  up- 
held by  the  Supreme  Court  of  Iowa,  and  is  still  part  of  the  statute 
law  of  the  state,  though  it  does  not  appear  to  have  been  used  very 
much. 1 

Reference  was  made  to  this  Iowa  law  in  the  Illinois  Convention 
of  1869-70 ; but  no  similar  act  has  been  passed  in  this  state.  It  may 
be  noted,  however,  that  it  has  been  suggested,  in  a Supreme  Court 
opinion  in  Illinois  that : “The  legislature  * * * might  provide  a 

system  by  which  municipalities  should  become  incorporated,  or  for 
changing  and  amending  existing  charters,  in  the  discretion  and 
through  the  agency  of  those  to  be  affected.”  2 3 

Laws  somewhat  similar  to  that  of  Iowa  have  been  enacted  more 
recently  in  a number  of  other  states : Louisiana  in  1896,  South  Car- 
olina in  1899,  Mississippi  in  1900  and  Florida  and  Connecticut  in 
1915. 3 The  Mississippi  Act  has  been  applied  in  several  cases,  and 
has  been  upheld  by  the  Supreme  Court  of  the  State. 4 


xLaws  of  Iowa,  1858,  ch.  157;  Code  of  1897,  S.  1047;  Ex  parte  Pritz,  9 
Iowa  222  (1870);  Davis  & Bro.  v.  Woolnough,  9 Iowa  104  (1859);  Hetherington 
v.  Bissel,  10  Iowa  145  (1859);  Voss  Phul  v.  Harmer,  29  Iowa  22  (1870).  It  may 
be  noted  that  in  the  last  of  these  cases,  the  original  special  charter  of  the 
city  (Newton)  contained  a provision  authorizing  its  own  amendment,  although 
this  is  not  referred  to  in  the  judicial  opinion. 

2 People  v.  Cooper,  83  111.  585,  590. 

3 A Louisiana  Act  of  1896  provides  that  new  charters  may  he  adopted  and 
promulgated  by  any  city  or  town  except  New  Orleans,  on  pe.tition  of  a major- 
ity of  the  property  owners  and  ratification  by  popular  vote.  No  test  of  this 
act  appears  to  have  been  made  in  the  courts;  and  it  may  be  doubted  if  it 
has  been  used. 

Acts  of  the  General  Assembly  1896.  p.  190;  Revised  Statutes,  1915,  Secs. 
4865-70. 

In  South  Carolina  a similar  act  for  the  amendment  of  town  and  city 
charters  was  passed  in  1899,  with  a provision  that  the  amendments  adopted 
should  be  filed  with  the  Secretary  of  State. 

Acts  of  the  General  Assembly  1899,  No.  42;  Civil  Code  1912,  Sec.  2985.  See 
Hill  v.  Abbeville  59  S.  C.  407  (1901). 

4 The  Mississippi  act  of  1900  provides  for  the  amendment  of  independent 
charters  by  the  mayor  and  council  on  the  approval  of  the  governor  and  attor- 
ney general  as  consistent  with  the  constitution  and  laws  of  the  United  States 
and  the  state  constitution;  but  on  protest  by  one-tenth  of  the  electors,  the 
amendments  must  be  submitted  to  popular  referendum.  This  act  has  been 
applied  in  several  cases  and  has  been  upheld  by  the  Supreme  Court  of  Mis- 


407 


The  provisions  of  these  laws  are  brief  and  crude,  and  do  not 
attempt  to  solve  the  difficult  problems  which  arise  as  to  the  scope 
of  municipal  powers;  while  very  little  has  been  done  under  their 
authority.  It  is,  of  course,  always  possible  for  the  legislature  to  re- 
peal the  act,  or  to  override  any  locally  adopted  charter  provision 
by  subsequent  legislation  of  its  own. 

Somewhat  similar  acts,  passed  in  Michigan  (in  1899)  and  Wis- 
consin (in  1911)  have  been  held  to  be  invalid,  as  an  unconstitutional 
delegation  of  legislative  power.5 

A New  York  “home  rule”  law  of  1913,  granting  an  extended 
list  of  powers  to  all  cities,  enumerated  in  23  articles,  has  been  largely 
ineffective,  first  because  of  the  doubt  as  to  the  legal  capacity  of  the 
legislature  to  devolve  so  much  power  of  local  legislation,  and  second 
because  of  provisions  in  existing  charters.6 


Constitutional  Home  Rule:  Beginning  with  Missouri  in  1875, 
thirteen  states  have  adopted  constitutional  provisions  authorizing  cit- 
ies (and  in  some  cases  also  villages  and  counties)  to  frame  and  adopt 
their  own  charters  of  municipal  government.  These  provisions  have 
been  frequently  used;  and  an  examination  of  this  development  and 
its  operation  will  be  of  service  in  relation  to  the  problem  in  Illinois. 

In  the  Missouri  Constitution  of  1875,  provisions  were  adopted 
authorizing  any  city  of  over  100,000  population  to  frame  and  adopt 
a charter,  with  special  provisions  for  the  city  of  St.  Louis.  Under 
these  provisions,  new  charters  were  prepared  and  adopted  by  St. 
Louis  in  1876  and  by  Kansas  City  in  1888;  and  revised  charters  were 
prepared  and  adopted  by  Kansas  City  in  1908,  and  by  St.  Louis  in  1914. 


sissippi,  one  case  holding  that  under  it  a city  having  a special  charter  might 
adopt  an  amendment  providing  for  the  owning  and  operating  of  an  electric  rail- 
way and  issuing  bonds  therefor. 

Laws  of  Mississippi.  1900,  ch.  69;  Code  of  1906,  Sec.  3444;  O’Flinn  v.  Me. 
Innis,  80  Miss.  125  (31  So.  584)  (1902);  Yazoo  City  v.  Lightcan,  82  Miss.  148 
(33  So.  949)  (1903).  It  was  noted  that  the  Mississippi  Code  of  1857  had  pro- 
vided that  applicants  for  corporate  charters  (including  municipal  corporations) 
should  prepare  a charter,  stating  the  powers  to  be  exercised,  and  on  approval 
by  the  Governor  and  Attorney  General  these  powers  should  be  vested  in  the 
corporation.  Similar  provisions  had  been  continued  in  later  laws  and  the 
Code  of  1892.  Adams  v.  Kuykendall,  83  Miss.  571  (35  So.  830)  (1904);  Love  v. 
Holmes.  91  Miss.  535  (44  So.  835)  (1907).  “The  Act  of  the  Legislature  has 
given  municipalities  operating  under  special  charters  the  power  to  so  amend 
their  charters  as  to  do  anything  they  may  wish,  provided  only  that  the 
amendment  does  not  conflict  with  the  enumerated  laws.” 

In  1915  two  other  state  legislatures  passed  acts  of  the  same  nature.  A 
Florida  act  authorizes  every  city  and  town  to  change  the  provisions  of  its 
charter  as  to  organization  and  powers  of  offices  and  boards,  but  not  to  enlarge 
its  corporate  powers,  by  means  of  an  elected  charter  board  and  a popular 
referendum.  A Connecticut  act  provides  that  any  town  governed  under  a spe- 
cial act,  or  any  borough  or  city,  may  amend  its  charter,  through  a charter  com- 
mission and  a local  referendum.  Acts  relating  to  local  or  police  courts  may  not 
be  amended  in  this  way 

Florida  Acts  and  Resolutions  1915,  ch.  6940  (No.  134);  Connecticut  Public 
Acts,  1915,  ch.  317. 

5 Elliott  v.  City  of  Detroit,  121  Mich.  611  (1899);  State  v.  Thompson,  149 
Wis.  488  (1912) 

6 Seth  Low  in  New  York  Constitutional  Convention  (1915)  Revised  Record 

II,  1968. 


408 


Four  years  after  the  Missouri  Constitution,  a similar  provision 
was  adopted  in  the  California  Constitution  of  1879 ; but  San  Fran- 
cisco (the  only  city  of  over  100,000  population)  did  not  adopt  a new 
charter  until  1898.  In  the  meantime  the  population  limit  in  the  Cali- 
fornia Constitution  was  reduced  in  1887  to  10,000  and  in  1892  to  3,500 ; 
and,  beginning  with  Los  Angeles  in  1889,  more  than  thirty  cities 
have  framed  and  adopted  new  charters.  In  1911,  a constitutional 
amendment  was  adopted  in  California  authorizing  counties  to  frame 
and  adopt  local  charters ; and  this  has  been  acted  on  by  two  counties. 

In  1889  the  constitution  for  the  new  state  of  Washington  included 
a provision  authorizing  cities  of  over  20,000  population  to  frame 
and  adopt  their  own  charters.  Seattle  and  Tacoma  adopted  new 
charters  under  this  plan  in  1890 ; and  these  have  since  been  followed 
by  Spokane  and  Everett,  all  but  one  of  the  cities  of  over  20,000 
population  in  the  state. 

The  next  state  to  adopt  this  method  was  Minnesota,  where  a 
constitutional  amendment  was  ratified  in  1896,  authorizing  any  city 
or  village  to  frame  and  adopt  its  charter.  Within  a few  years  new 
charters  had  been  adopted  by  St.  Paul  and  Duluth,  and  several 
smaller  cities ; and  more  than  forty  cities  and  villages  have  now 
adopted  charters  by  this  method. 

In  1902,  a constitutional  amendment  was  adopted  in  Colorado, 
forming  a consolidated  City  and  County  of  Denver;  and  authorizing 
it,  and  also  each  city  or  town  with  2,000  population,  to  make,  amend 
and  revise  or  replace  its  charter.  Under  this  provisions  Denver, 
Colorado  Springs,  Pueblo  and  several  other  cities  have  adopted  new 
charters. 

Thus  far  the  movement  for  constitutional  home  rule  had  pro- 
gressed but  slowly ; and  of  the  five  detached  states  where  local  char- 
ters were  authorized  only  in  two  (California  and  Minnesota)  had 
many  cities  acted  under  the  provisions.  But  beginning  in  1906,  more 
rapid  headway  was  made.  Oregon  adopted  a home  rule  provision  in 
1906,  Oklahoma  in  1907,  Michigan  in  1908,  four  states  (Arizona, 
Nebraska,  Ohio  and  Texas)  in  1912,  and  Maryland  in  1915.  In  Ore- 
gon, Michigan  and  Ohio  these  provisions  apply  to  all  cities  and 
villages ; in  Oklahoma  to  cities  of  more  than  2,000  population ; in  Ari- 
zona to  cities  of  over  3,500  population;  in  Texas  to  cities  of  over 
5,000  population ; and  in  Maryland  only  to  the  city  of  Baltimore  and 
to  counties. 

Active  use  has  been  made  of  this  authority  in  all  of  these 
states  except  Arizona  and  Nebraska.  In  each  of  the  states  of  Ore- 
gon, Oklahoma,  Michigan,  Ohio  and  Texas,  more  than  a score  of  cities 
and  villages  have  adopted  new  charters ; and  other  cities  and  villages 
(in  Oregon,  Michigan  and  Texas)  have  amended  earlier  legislative 
charters.  Among  the  larger  cities  in  these  states  with  home  rule 
charters  are  Cleveland,  Cincinnati,  Dayton,  Detroit,  Portland,  (Ore- 
gon) and  Baltimore. 

Altogether  more  than  200  cities  and  villages  in  the  United  States 
are  now  operating  under  home  rule  charters,  framed  and  adopted 


409 


under  constitutional  provisions.  These  include  fifteen  of  the  thirty 
largest  cities  in  the  country. 

A constitutional  amendment  authorizing  home  rule  charters 
was  submitted  in  Wisconsin  in  1914,  but  failed  of  adoption.  The  pro- 
posed New  York  Constitution  of  1915  contained  a series  of  compli- 
cated provisions  for  home  rule  city  charters ; but  this  constitution  was 
defeated. 

A proposed  amendment  authorizing  legislative  home  rule  was  ap- 
proved by  the  New  York  legislature  in  1917,  but  has  not  been  re- 
passed as  required.  A proposed  home  rule  amendment  has  been  ap- 
proved by  the  Wisconsin  legislature  in  1919,  but  must  be  repassed 
at  a later  session.  In  Utah  a proposed  amendment,  submitted  by  the 
legislature  in  1919,  will  be  voted  on  in  1920.  * 


Charter-making  Procedure:  In  most  of  the  constitutional  pro- 

visions  for  municipal  home  rule,  the  main  emphasis  has  been  laid 
on  the  authority  to  frame  and  adopt  charters.  In  most  cases  the  pro- 
cedure for  charter-making  is  prescribed  in  the  constitution ; but  this 
is  not  done  in  Oregon,  Michigan  and  Texas ; and  in  Michigan  and 
Texas  the  constitutional  provisions  have  been  supplemented  by  legis- 
lation regulating  the  procedure  and  methods  to  be  followed. 

It  is  urged  in  support  of  detailed  constitutional  provisions  on  pro- 
cedure, that  unless  these  are  definitely  set  forth  in  the  constitution  the 
grant  of  municipal  home  rule  is  merely  formal  and  directory,  and 
remains  subject  to  legislative  control  in  the  enabling  act.  On  the 
other  hand  it  may  be  said  that  the  grant  of  substantive  powers  is 
of  more  importance  than  the  details  of  procedure ; that  the  variations 
in  the  procedural  provisions  in  the  various  constitutions  and  their  fre- 
quent amendment  indicate  the  absence  of  agreement  as  to  the  best  sys- 
tem of  procedure ; that  none  of  the  constitutional  provisions  is 
entirely  self-executing;  and  that  in  the  states  where  the  procedure 
is  regulated  by  statute  workable  provisions  have  been  adopted  and 
there  has  been  no  serious  complaint  that  the  legislature  has  abused 
its  power,  while  changes  in  detail  may  be  more  readily  made. 

In  ten  of  the  thirteen  home  rule  states  (all  except  Minnesota, 
Oregon  and  Colorado)  the  local  councils  may  initiate  charter-making 
proceedings;  in  eleven  states  (all  except  Missouri  and  Washington), 
the  initiative  may  be  begun  by  popular  petition ; and  in  eight  states  (all 
but  the  five  named  above)  either  method  may  be  used. 

All  of  the  home  rule  states  except  Oregon  provide  for  a special 
body  to  draft  the  charter,  styled  a board  of  freeholders  or  charter 
commission.  These  bodies  consist  of  from  11  to  21  members,  elected 
at  large,  except  in  Oklahoma  and  Michigan  (where  members  are 
elected  by  wards)  and  in  Minnesota  where  they  are  appointed  by  the 
district  judges.  In  Oregon  proposed  charters  or  amendments  are 


410 


presented  by  initiative  petition  or  by  the  local  council.  In  Mary- 
land county  charter  boards  have  only  five  members. 

In  seven  states,  only  freeholders  may  be  members  of  the  charter 
boards.  In  several  states  there  are  special  residence  requirements. 
In  some  states  any  qualified  voter  may  be  chosen.  Most  states  provide 
no  compensation  for  the  charter  board ; but  compensation  is  authorized 
in  Colorado  and  Michigan. 

Most  states  fix  a time  limit  for  the  preparation  of  the  charter, 
ranging  from  30  days  in  Washington  to  one  year  in  Ohio.  From 
90  days  to  six  months  are  the  more  common  periods. 

In  all  the  home  rule  states,  proposed  charters  and  amendments 
must  be  submitted  to  popular  ratification.  In  six  states  provision 
is  made  for  publication  in  local  newspapers ; in  California  charters 
must  also  be  printed  in  pamphlet  form  for  distribution  on  application ; 
and  in  Ohio,  Oregon  and  Texas  a copy  of  proposed  charters  must 
be  sent  to  every  voter  before  the  election.  It  is  usually  provided 
that  the  ratification  election  must  come  within  certain  time  limits  after 
publication — generally  from  20  to  90  days. 

A majority  of  those  voting  on  the  charter  is  in  most  cases  suf- 
ficient for  ratification.  In  Texas,  however,  there  must  be  a majority 
of  the  total  vote  at  the  election.  Missouri  and  Minnesota  require 
three-fifths  or  four-sevenths,  respectively,  of  those  voting  at  the  elec- 
tion, a provision  which  has  increased  the  difficulty  of  adopting  charters. 

In  several  states  provision  is  made  for  submitting  charters  to  state 
authorities  before  they  go  into  effect.  In  California,  all  charters  are 
transmitted  to  the  legislature  for  approval  or  rejection  as  a whole.  In 
Arizona  and  Oklahoma,  charters  are  submitted  to  the  Governor,  who 
shall  approve  them  unless  in  conflict  with  the  constitution  or  [and] 
laws  of  the  state.  In  Michigan  the  legislative  act  provides  that  pro- 
posed charters  before  ratification  shall  be  submitted  to  the  Governor, 
and  if  he  disapproves  a two-thirds  vote  of  the  charter  commission  is 
required.  Thus  far  no  charters  have  been  disapproved  in  these 
states. 

Most  states  provide  that  official  copies  of  charters  and  amend- 
ments shall  be  filed  with  the  Secretary  of  State ; and  in  several  states 
it  is  specifically  provided  that  the  courts  shall  take  judicial  notice  of 
such  charters. 

Amendments  to  former  legislative  charters  may  be  adopted  under 
the  home  rule  procedure  in  Oregon,  Michigan  and  Texas,  without 
first  adopting  a new  charter  by  this  method.  In  the  other  home  rule 
states,  amendments  may  be  made  only  to  home  rule  charters.  The  pro- 
cedure for  amendments  is  similar  to  that  of  framing  a new  charter, 
except  that  a special  charter  board  need  not  be  organized.  In  most 
cases  amendments  may  be  prepared  either  by  the  local  council  or  by 
popular  petition.  In  Missouri  and  Washington  amendments  may  be 
proposed  only  by  the  council ; and  in  Colorado  only  by  petition.  The 
proceedings  for  the  submission  and  ratification  of  amendments  is  the 
same  as  for  new  charters. 


411 


Scope  of  Municipal  Powers : In  about  half  of  the  states  which 
have  provided  for  home  rule  charters,  the  constitutional  provisions 
have  not  attempted  to  define  even  in  general  terms,  the  substantive 
powers  intended  to  be  conferred  on  cities  by  the  authority  to  frame 
and  adopt  their  own  charters.  At  the  same  time,  most  of  the 
earlier  constitutions  with  home  rule  provisions  also  provide  that 
the  local  charters  are  subject  to  the  constitution  and  laws  of  the 
state. 7 

In  California  the  original  provision  contained  a similar  phrase ; 
but  this  was  modified  by  another  clause  that  a home  rule  charter  of  a 
city  should  “become  the  organic  law  thereof,  and  supersede  any 
existing  charter  and  all  amendments  thereof,  and  all  special  laws  in- 
consistent with  such  charter.” 

Under  these  conditions  questions  soon  arose  where  home  rule 
charter  provisions  conflicted  with  State  laws,  and  the  courts  were 
called  on  to  decide  whether  the  provisions  of  the  charter  or  the 
state  law  should  be  upheld.  In  Missouri  charter  provisions  have 
been  held  invalid  when  they  were  inconsistent  with  state  laws  re- 
lating to  police,  liquor  licenses,  elections,  taxation  and  assessments : 
but  charter  provisions  were  held  to  supersede  State  laws  relating 
to  parks,  street  improvements  and  the  removal  of  municipal  officers. 
In  California,  under  the  original  provisions,  the  Supreme  Court 
held  that  municipal  charters  were  subordinate  to  general  laws  en- 
acted by  the  legislature. 

In  Washington  and  Minnesota  the  courts  have  upheld  state 
laws  as  against  local  charters,  and  the  scope  of  municipal  authority 
has  been  in  effect  dependent  on  the  legislature. 8 

In  the  Oregon  home  rule  amendment  of  1906,  the  legal  voters 
of  every  city  and  town  are  granted  power  to  enact  and  amend  their 
municipal  charter,  “subject  to  the  constitution  and  criminal  laws 
of  the  state  of  Oregon. ” After  some  hesitation  in  early  decisions, 
the  supreme  court  of  Oregon  has  held  that  the  legislature  may  enact 
general  laws  which  modify  the  charters  of  all  cities  and  munici- 
palities. 9 

In  view  of  these  difficulties,  later  constitutional  provisions  in 
several  states  have  included  more  positive  and  more  definite  state- 
ments of  powers  conferred.  The  California  provisions  have  been 
amended  several  times  with  this  object.  In  1892  it  was  provided 
that  a home  rule  charter  should  supersede  “all  laws  inconsistent” 
therewith.  In  1896,  an  additional  section  was  adopted  enumerating 
certain  matters  which  could  be  provided  for  in  such  charters,  viz. : 
the  constitution  and  jurisdiction  of  police  courts,  and  the  selection 
and  terms  of  boards  of  education,  police  commissioners,  and  elec- 
tion boards.  This  list  has  been  later  extended  by  including  the  reg- 
ulation of  municipal  elections,  the  consolidation  of  city  and  county 
government  and  other  matters.  In  1906  the  clause  that  charters 

7 Arizona,  Minnesota,  Missouri,  Nebraska,  Oklahoma  and  Washington. 

8M’cBain:  Law  and  Practice  of  Municipal  Home  Rule,  pp.  124,  133-171,  245- 
257,  456,  497. 

9 Illinois  Municipal  League  Proceedings  IV,  86,  98;  State  v.  Port  of  Astoria. 
79  Ore.  1 (154  Pac.  399):  Rose  v.  Port  of  Portland.  82  Ore.  541  (162  Pac.  498): 
Note  also  Kalich  v.  Kalich,  73  Ore.  558  (142  Pac.  22). 


412 


should  be  subject  to  the  constitution  and  laws  was  amended  by 
omitting  the  words  “and  laws.”  And  in  1914  a further  amendment 
was  adopted  including  the  following  provision : 

“It  shall  be  competent  in  any  charter  framed  under  the  author- 
ity of  this  section  to  provide  that  the  municipality  governed  there- 
under may  make  and  enforce  all  regulations  in  respect  to  municipal 
affairs,  subject  only  to  the  restrictions  and  limitations  provided  in 
their  several  charters  and  in  respect  to  other  matters  they  shall  be 
subject  to  general  laws.” 

The  later  amendments  to  the  California  provisions  have  in- 
creased in  length  and  detail.  The  amendment  of  1911  relating  to 
county  charters  covers  8 pages,  specifying  provisions  relating  to 
county  officers  and  their  powers,  and  duties.  An  additional  amend- 
ment, adopted  in  1918,  relating  to  consolidated  city  and  county 
government  is  18  pages  long,  and  appears  to  have  been  prepared 
with  reference  to  the  particular  case  of  Alameda  County.  The  sec- 
tion enumerating  what  a city  charter  may  contain,  as  amended  in 
1914  and  1918,  is  8 pages  in  length.  The  home  rule  provisions  for 
counties  and  cities  now  aggregate  40  pages  in  the  state  constitution. 

Such  detailed  provisions  go  far  beyond  what  is  suitable  for  a 
state  constitution.  They  show  the  influence  of  the  same  tendency 
to  deal  with  specific  matters  rather  than  questions  of  general  princi- 
ple, which  has  been  the  source  of  trouble  in  statutory  legislation  on 
municipal  government.  Even  with  the  adoption  of  frequent  amend- 
ments, the  result  will  be  to  hamper  the  cities  in  the  future.  Such 
methods  of  dealing  with  the  problem  should  be  avoided. 

The  Michigan  constitution  of  1908  leaves  the  details  of  charter 
procedure  to  legislation,  but  gives  more  attention  to  the  scope  of 
municipal  powers  than  the  earlier  provisions  in  other  states.  The 
main  provisions  adopted  are  as  follows : 

Article  VIII.  Local  Government.  “Sec.  20.  The  legislature 
shall  provide  by  a general  law  for  the  incorporation  of  cities  and 
by  a general  law  for  the  incorporation  of  villages ; such  general  laws 
shall  limit  their  rate  of  taxation  for  municipal  purposes,  and  re- 
strict their  powers  of  borrowing  money  and  contracting  debts.” 
“Sec.  21.  Under  such  general  laws  the  electors  of  each  city 
shall  have  power  and  authority  to  frame,  adopt  and  amend  its  char- 
ter, [and  to  amend  an  existing  charter  of  the  city  or  village  here- 
tofore granted  or  passed  by  the  legislature  for  the  government  of 
the  city  or  village],  and  through  its  regularly  constituted 
authority  to  pass  all  laws  and  ordinances  relating  to  its  municipal 
concerns , subject  to  the  constitution  and  general  laws  of  the  state.10” 
Other  sections  enumerate  powers  as  to  certain  public  institu- 
tions and  works,  and  public  utilities,  and  authorize  limitations  on 
cities  and  villages  as  to  taxation,  debts  and  some  other  matters. 

In  the  constitutional  provisions  adopted  by  Ohio  in  1912  is 
the  following  general  statement  of  municipal  powers : 

10  Clause  in  brackets  is  an  amendment  added  in  1912,  on  account  of  a 
decision  of  the  Supreme  Court. 


413 


Article  XVIII.  Municipal  Corporations.  “Sec.  3.  Municipal- 
ities shall  have  authority  to  exercise  all  powers  of  local  self  govern- 
ment and  to  adopt  and  enforce  within  their  limits  such  local  police, 
sanitary  and  other  similar  regulations  as  are  not  in  conflict  with 
general  laws.” 

Other  sections  enumerate  powers  as  to  public  utilities,  excess 
condemnation  and  special  assessments,  with  provisions  as  to  limi- 
tations on  taxes,  debts  and  financial  reports. 

The  Colorado  amendment  of  1902  stands  alone  in  containing 
no  definite  provision  that  municipal  home  rule  charters  shall  be  sub- 
ject to  the  state  constitution  or  laws;  but  in  its  original  form  it 
contained  no  definite  statement  of  municipal  powers.  A later 
amendment  proposed  by  initiative  petition  and  ratified  in  1912,  con- 
tains both  a general  statement  and  a specific  enumeration  of  munici- 
pal powers.  The  general  statement  is  as  follows: 

Article  XX.  “Sec.  6.  The  people  of  each  city  or  town  in  this 
state,  having  a population  of  2,000  inhabitants  * * * are  hereby 

vested  with,  and  they  shall  always  have  power  to  make,  amend,  add 
to  or  replace  the  charter  of  said  city  or  town,  which  shall  be  its  or- 
ganic law  and  extend  to  all  its  local  and  municipal  matters.” 

“Such  charter  and  the  ordinances  made  pursuant  thereto,  in 
such  matters  shall  supersede  within  the  territorial  limits  and  other 
jurisdiction  of  said  city  or  town  any  law  of  the  state  in  conflict 
therewith.” 

The  enumerated  powers  include : (a)  the  creation  and  terms 
of  municipal  officers,  their  powers,  duties,  etc.;  (b)  the  creation  and 
regulation  of  police  and  (c)  municipal  courts,  their  jurisdiction  and 
offices ; (d)  all  matters  pertaining  to  municipal  elections ; (e)  the 
issue,  refunding  and  liquidation  of  all  kinds  of  municipal  obliga- 
tions ; (f)  the  consolidation  and  management  of  park  or  water  dis- 
tricts; (g)  the  assessment,  levy  and  collection  of  taxes;  and  (h)  the 
imposition,  enforcement  and  collection  of  fines  and  penalties. 

Following  the  enumeration  it  is  further  set  forth  that: 

“It  is  the  intention  of  this  article  to  grant  and  confirm  to  the 
people  of  all  municipalities  coming  within  its  provisions  the  full  right 
of  self-government  in  both  local  and  municipal  matters  and  the  enum- 
eration herein  of  certain  powers  shall  not  be  construed  to  deny  to 
such  cities  and  towns  any  right  or  power  essential  or  proper  to  the 
full  exercise  of  such  right.” 

“The  Statutes  of  the  State  of  Colorado,  so  far  as  applicable  shall 
continue  to  apply  to  such  cities  and  towns,  except  in  so  far  as  super- 
seded by  the  charters  of  such  cities  and  towns  or  by  ordinance  passed 
pursuant  to  such  charters.” 

A general  grant  of  authority  over  local  or  municipal  affairs  seems 
a necessary  complement  to  the  power  to  frame  and  adopt  home  rule 
charters.  But  in  view  of  the  doctrine  of  strict  construction  followed 
by  the  courts,  it  will  be  necessary  to  supplement  this  with  an  enumera- 
tion of  particular  powers  which  are  clearly  intended  to  be  granted. 
What  powers  will  be  enumerated  will  depend  on  different  views  as 


414 


to  the  powers  to  be  conferred.  If,  for  example,  municipal  home  rule 
charters  are  to  be  allowed  to  include  provisions  on  the  machinery  of 
elections,  police  courts,  public  utilities,  school  management,  taxation, 
eminent  domain  or  other  matters  which  have  been  held  to  be  essen- 
tially state  functions,  these  matters  should  be  specifically  noted  in  the 
constitution.  The  present  Colorado  provisions  appear  to  be  the  most 
sweeping;  and  next  are  those  of  California.  The  provisions  in  the 
constitutions  of  the  neighboring  states  of  Michigan  and  Ohio  are 
less  detailed,  but  more  effective;  and  those  in  the  proposed  New  York 
constitution  of  1915  were  still  more  detailed  and  also  more  conserva- 
tive. 


Requirements  and  Limitations : Most  of  the  home  rule  provi- 
sions of  state  constitutions  include,  along  with  the  power  to  adopt 
charters,  certain  mandatory  provisions,  and  some  negative  restrictions 
and  limitations.  In  Missouri  the  charter  must  provide  for  a mayor 
and  for  a bicameral  council,  one  branch  of  which  shall  be  elected 
at  large.  In  Minnesota,  the  charter  must  provide  for  a mayor  and  a 
council  of  one  or  two  branches,  and  if  bicameral  at  least  one  branch 
must  be  elected  at  large.  The  Colorado  amendment  requires  the  City 
and  County  of  Denver  to  designate  officers  who  shall  perform  the 
duties  of  county  officers,  and  to  provide  that  the  departments  of  fire 
and  police  and  of  public  utilities  and  works  shall  be  under  civil  service 
regulations. 

The  Michigan  Constitution  prohibits  cities  and  villages  from 
abridging  the  elective  franchise,  loaning  their  credit,  or  imposing  taxes 
for  other  than  public  purposes ; it  requires  a three-fifths  vote  for 
acquiring  public  utilities  or  granting  irrevocable  public  utility  fran- 
chises ; and  it  requires  the  legislature  to  limit  their  powers  of  taxation 
and  debt.  The  legislature  has  further  required  that  the  charter  pro- 
vide for  a mayor,  a legislative  body,  a clerk  and  treasurer,  and  es- 
tablish regulations  for  the  conduct  of  elections  and  a system  of  ac- 
counts. 

In  the  Ohio  provisions,  laws  are  authorized  to  limit  the  power 
of  cities  to  levy  taxes  and  incur  debts,  and  to  require  financial  reports 
and  the  examination  of  municipal  accounts. 

The  long  and  detailed  provisions  in  the  California  constitution, 
while  in  form  adding  to  the  grant  of  powers,  inevitably  tend  to  limit 
the  freedom  of  local  action,  as  is  also  indicated  by  the  frequency 
of  their  amendment. 

Some  limitations  on  municipal  powers  are  necessary,  and  are 
recognized  by  most  advocates  of  the  home  rule  charter  system. 
Such  provisions  as  those  in  the  Michigan  and  Ohio  constitutions  con- 
tinuing legislative  control  over  taxation,  debt,  financial  reports  and 
accounts,  and  the  police  power  of  the  state,  are  not  in  conflict  with 
the  general  principle  of  home  rule  in  local  affairs. 


415 


But  it  che  grant  of  municipal  home  rule  is  to  elective,  the 
detailed  provisions  of  some  of  the  constitutional  provisions  indicate 
the  danger  of  too  minute  regulation  in  the  constitution,  which  may 
have  the  effect  of  substituting  a more  drastic  and  rigid  constitutional 
control  for  a more  flexible  system  of  legislative  control.  Require- 
ments as  to  specific  officials,  specific  financial  limitations,  and  even 
detailed  regulations  as  to  charter  procedure  are  matters  outside  the 
field  of  constitutional  principles.  Such  provisions  are  necessarily 
subject  to  change,  and  are  likely  to  hamper  future  development,  even 
if  the  practice  of  some  states  of  adopting  numerous  amendments  to 
the  constitution  at  every  election  is  introduced. 


Proposed  New  York  Constitution:  In  the  New  York  Constitu- 
tional Convention  of  1915,  there  was  an  extended  discussion  of  mu- 
nicipal home  rule  both  in  committee  and  in  the  convention.  The  pro- 
posed constitution  contained  complicated  provisions,  which  attempted 
to  define  the  spheres  of  municipal  and  state  authority  more  definitely 
than  in  other  home  rule  constitutions.  There  was  a general  grant  of 
power  to  cities,  followed  by  an  illustrative  enumeration  of  specific 
powers  and  by  provisions  for  legislative  control  in  matters  of  state 
concern.  The  general  grant  read : 

Article  XV.  “Sec.  3.  Every  city  shall  have  exclusive  power  to 
manage,  regulate  and  control  its  property,  affairs  and  municipal  gov- 
ernment, subject  to  the  provisions  of  this  constitution,  and  subject 
further  to  the  general  laws  of  the  state,  of  laws  applying  to  all  the 
cities  of  the  state  without  classification  or  distinction,  and  of  laws 
applying  to  a county  not  wholly  included  within  a city  establishing 
or  affecting  the  relation  between  such  a county  and  a city  therein.” 

Enumerated  powers  granted  to  cities  were  those  relating  to  mu- 
nicipal organization,  to  city  officers  and  employees  (including  police 
and  health  officers  and  non- judicial  officers  attached  to  courts  not 
of  record),  the  revision  of  charters  and  the  amendment  of  charters, 
and  of  special  or  local  laws  relating  to  municipal  government.  State 
authoritv  was  reserved  by  providing  that  revised  charters  and  amend- 
ments affecting  “the  framework  of  government”  should  be  subject  to 
legislative  veto:  by  the  power  of  the  legislature,  to  regulate  “matters 
of  state  concern”,  either  bv  general  laws  applicable  to  all  cities,  or 
by  special  city  laws  subject  to  a suspensive  local  veto ; and  by  the 
power  of  the  legislature  to  restrict  the  powers  of  taxation  and  assess- 
ment, and  to  regulate  labor  conditions  of  employees  of  municipalities 
or  municipal  contractors. 

These  provisions  were  accepted  in  the  convention  as  a substantial 
measure  of  home  rule  bv  a large  majority  (120  to  17).  But  some 
of  those  voting  in  the  affirmative  objected  to  the  restrictions  and  limi- 
tations ; and  most  of  those  voting  in  the  negative  (including  the  pres- 
ent Governor  of  New  York  State)  did  so  because  they  considered  the 


416 


provisions  inadequate.  One  negative  vote  (that  of  Willism  Barnes 
of  Albany)  was  in  opposition  to  the  principle  of  municipal  home  rule. 

The  amendment  proposed  in  Utah  in  1919  follows  in  some  re- 
spects the  provisions  of  the  National  Municipal  League;  but  with 
more  restrictions  on  municipal  powers,  especially  a specific  limitation 
as  to  public  utility  regulation.  The  proposed  Wisconsin  amendment 
of  1919  is  very  brief,  and  leaves  the  whole  question  of  procedure 
to  the  legislature ; but  authorizes  a larger  borrowing  power  to  munici- 
palities for  acquiring  public  service  properties. 


National  Municipal  League  Proposal:  Proposed  constitutional 
provisions  for  municipal  home  rule  have  been  prepared  and  recom- 
mended by  the  Committee  on  Municipal  Program  of  the  National 
Municipal  League.  This  committee,  with  representatives  from  New 
York,  Pennsylvania,  Illinois,  Ohio,  Massachusetts,  Texas  and  Indi- 
ana, was  appointed  in  1913 ; and  after  a series  of  meetings  its  recom- 
mendations were  submitted  in  December,  1915. 

These  provide  for  the  incorporation  of  cities  and  villages  by  a 
general  law ; for  a general  law  for  the  organization  and  government  of 
cities  and  villages  which  do  not  adopt  laws  or  charters  under  other 
sections ; for  other  optional  laws ; and  for  the  framing  and  adoption  of 
city  charters  by  any  city.  The  procedure  for  charter-making  and 
for  amendments  thereto  is  prescribed. 

Each  city  is  to  be  granted  authority  to  exercise  all  powers  relat- 
ing to  municipal  affairs ; but  this  is  not  to  restrict  the  power  of  the 
legislature,  in  matters  relating  to  state  affairs,  to  enact  general  laws 
applicable  alike  to  all  cities  of  the  state.  Specific  powers  of  cities 
are  also  enumerated,  including  taxation  and  borrowing  (within  limits 
to  be  prescribed  by  general  law),  special  assessments,  public  utilities, 
local  public  improvements,  with  power  of  excess  condemnation,  the 
issue  of  bonds  secured  by  public  utilities  or  excess  property,  and  (sub- 
ject to  general  laws)  public  schools  and  libraries,  and  local  police, 
sanitary  and  other  similar  regulations.  Provision  is  made  for  general 
laws  requiring  financial  reports  and  for  the  examination  of  municipal 
accounts. 

It  is  also  provided  that  any  city  of  over  100,000  population  may 
be  organized  as  a distinct  county;  and  may  provide  for  the  consolida- 
tion of  county,  city  and  all  other  local  authorities  in  one  system  of 
municipal  government. 


Consolidation  of  local  districts : The  problem  of  municipal 
home  rule  is  further  complicated  by  the  existence  of  overlapping 
local  districts,  which  are  probably  more  numerous  in  Illinois  than 
in  other  states.  In  most  states,  cities  are  the  principal  local  dis- 
tricts smaller  than  counties,  and  often  combine  all  of  the  functions 


417 


of  local  government  within  their  limits  except  those  of  the  county. 
Thus  in  most  states  with  town  or  township  government,  cities  ab- 
sorb the  functions  of  town  government.  In  some  cases  the  local 
school  organization  is  also  part  of  the  city  government;  though 
more  often  the  school  authorities  constitute  a distinct  municipal 
corporation.  Special  districts  and  corporate  authorities  for  other 
purposes,  such  as  parks  and  drainage,  are  less  frequent  in  other 
states  than  in  Illinois.  As  a result,  the  grant  of  home  rule  powers 
to  cities  in  other  states  enables  them  to  deal  with  most  of  the  prob- 
lems of  local  organization  and  government.  But  in  Illinois  home 
rule  for  cities  alone  will  not  be  sufficient  to  deal  with  the  local  prob- 
lems of  towns,  parks  and  drainage  districts  which  embrace  cities 
within  their  limits. 

In  the  case  of  large  cities  the  relations  between  cities  and  coun- 
ties become  important.  In  a number  of  cases  in  other  states  the 
local  government  of  large  cities  and  counties  has  been  consolidated 
to  some  extent.  New  York  City  includes  five  counties ; Philadel- 
phia City  and  County  are  identical  in  area ; Baltimore  and  St.  Louis 
combine  city  and  county  functions ; and  Boston  includes  most  of 
Suffolk  county.  In  all  of  these  cases,  the.  city  government  includes 
some  of  the  county  functions  and  county  officers.  In  Virginia  all 
cities  are  excluded  from  the  counties,  and  the  city  government  pro- 
vides for  county  functions. 

Several  state  constitutions  have  provisions  authorizing  larger 
cities  to  be  organized  as  separate  counties.  In  Minnesota,  cities  of 
over  20,000  may  be  so  organized;  and  in  Michigan,  cities  of  over 
100,000.  In  Missouri,  city  and  county  government  may  be  consoli- 
dated in  counties  having  a city  of  over  100,000.  The  California  con- 
stitution contains  a general  provision  authorizing  the  consolidation 
of  city  and  county  governments  and  special  provisions  for  San 
Francisco  and  for  certain  other  counties.  In  Colorado  the  home 
rule  provisions  specifically  authorize  a consolidated  government 
for  the  city  and  county  of  Denver. 11 

As  already  noted,  in  the  Illinois  Constitutional  Convention  of 
1869-70,  a provision  was  at  one  time  adopted  authorizing  any  city 
with  a population  of  200,000  to  be  organized  into  a separate  county 
but  this  was  later  reconsidered  and  stricken  out,  at  the  request  of 
Cook  County  members. 12 

The  general  assembly  of  1903  submitted  a constitutional 
amendment,  which  was  ratified  in  1904  as  Section  34  of  Article  TV, 
authorizing  the  consolidation  of  local  governments  within  the  citv 
of  Chicago.  The  original  resolution  as  introduced  in  the  general 
assembly  provided  also  for  the  consolidation  of  city  and  county 
government  in  Chicago ; but  the  clauses  relating  to  county  govern- 
ment were  omitted  from  the  proposed  amendment  as  submitted  and 
adopted. 13 

While  this  amendment  was  pending  in  the  general  assembly  a 
resolution  was  introduced  by  Senator  Humphrey  of  Cook  County, 

11  See  Pamphlet  on  Chicago  and  Cook  County. 

12  Proceedings  and  Debates,  IT,  1521,  1536.  1835-6- 

13  See  Pamphlet  on  Chicago  and  Cook  County. 


418 


proposing  the  following  amendment  to  the  constitution  so  as  to 
authorize  generally  the  consolidation  of  local  governments  within 
cities : 

“Section  34.  The  General  Assembly  may,  by  general  law,  pro- 
vide for  the  abolishment  within  cities  (with  the  consent  of  a ma- 
jority of  the  legal  voters  of  the  city  voting  upon  the  question)  of 
township  government,  park  and  school  boards,  and  any  or  all  other 
local  municipal  corporations  within  the  city,  and  devolve  the  func- 
tions upon  the  city  authorities,  and  may  authorize  such  city  to  as- 
sume the  indebtedness  of  the  local  corporation  so  abolished  and 
may  in  like  manner,  provide  for  the  abolishment  of  the  offices  of 
the  justice  of  the  peace  and  police  magistrates,  in  cities  of  150,000 
population  and  upwards,  with  like  consent  of  the  legal  voters 
thereof ; and  establish  one  or  more  district  courts  therein,  with  such 
original  civil  and  criminal  jurisdiction  as  may  also  be  prescribed  by 
general  law ; and  may  also,  by  general  law,  allow  any  city  with  the 
consent  of  a majority  of  the  legal  voters  voting  upon  the  question, 
to  become  indebted  in  any  amount  including  all  existing  indebted- 
ness, except  the  indebtedness  assumed  as  aforesaid,  not  exceeding  7 
per  centum,  on  the  value  of  taxable  property  within  such  city,  to 
be  ascertained  by  the  last  assessment  for  state  and  county  taxes 
prior  to  the  incurring  of  such  indebtedness. 14” 


General  Comparison  of  home  rule  provisions:  The  constitu- 

tional provisions  in  Michigan  and  Ohio  and  those  proposed  by  the 
National  Municipal  League  present  the  best  basis  for  establishing 
an  adequate  system  of  municipal  home  rule.  Of  these,  the  Michi- 
gan provisions  are  the  most  compact  as  they  omit  details  of  charter 
procedure.  The  Ohio  and  National  Municipal  League  provisions 
are  more  definite  and  more  satisfactory  in  dealing  with  the  scope  of 
municipal  powers,  but  are  longer  than  is  necessary  by  including  de- 
tailed provisions  on  procedure. 

Of  the  constitutional  provisions  in  other  states,  most  of  them 
deal  mainly  with  charter  procedure  and  make  no  adequate  or  defi- 
nite grant  of  municipal  powers.  The  Oregon  and  Texas  provisions 
are  the  shortest,  but  contain  neither  procedural  provisions  nor  a 
clear  statement  of  municipal  powers.  The  Colorado  and  California 
provisions  include  provisions  on  procedure,  and  also  detailed  state- 
ments of  specific  powers,  and  special  provisions  for  particular  com- 
munities. In  some  respects,  the  enumerated  powers  in  these  two 
states  go  further  than  may  be  desirable ; while  the  amount  of  detail, 
especially  in  the  California  constitution,  goes  clearly  beyond  what 
is  suitable  for  a state  constitution.  The  provisions  of  the  proposed 
New  York  constitution,  while  attempting  to  meet  difficulties  raised 
in  other  states,  are  both  too  complicated  and  detailed,  and  at  the 
same  time  are  inadequate  in  the  grant  of  municipal  powers. 


14  Senate  Joint  Resolution  No.  6,  1903. 


419 


V.  COMMENTS  AND  PROBLEMS. 


Criticism  of  Existing  Conditions : The  defects  and  evils  arising 
from  the  present  methods  of  legislation  on  municipal  affairs  may  be 
summarized  as  follows : 

(a)  Much  of  the  time  of  the  state  legislature  is  given  to  local 
measures,  on  which  only  part  of  the  members  can  be  expected  to  be 
familiar,  and  all  of  which  are  outside  the  field  of  general  state  legis- 
lation which  is  the  main  business  of  the  legislature.  This  means,  at 
best,  a waste  of  legislative  time,  and  has  a demoralizing  effect  on  the 
work  of  the  legislature.  It  interferes  with  the  independent  action  of 
the  legislators  on  measures  of  state-wide  importance,  since  they  are 
often  under  pressure  to  subordinate  their  views  on  such  matters  in 
order  to  avoid  opposition  to  measures  general  in  form  but  of  special 
application  to  their  districts. 

This  difficulty  is  now  less  serious  in  Illinois  than  in  the  days  of 
unlimited  special  legislation.  But  a large  part  of  each  legislative 
session  is  still  taken  up  with  legislation  really  local  in  character  and 
the  amount  of  such  legislation  is  steadily  increasing,  and  encroach- 
ing more  and  more  on  the  time  of  the  legislature.  One  result  of 
this  situation  is  to  make  local  problems  a factor  in  the  election  of 
members  of  the  general  assembly. 

(b)  From  the  point  of  view  of  the  local  communities,  the  main 
difficulty  is  the  lack  of  adequate  power  to  deal  promptly  and  ef- 
fectively with  local  problems.  Every  new  question,  outside-  of  the 
established  range  of  specified  powers,  and  often  slight  modifications 
in  the  methods  of  exercising  established  powers  require  additional 
legislation.  At  best,  even  if  there  is  no  opposition  in  the  legislature, 
this  means  delay  in  dealing  with  such  problems  or  in  carrying  out 
needed  local  projects.  More  often  opposition  leads  to  a compro- 
mise measure,  with  inadequate  authority  or  mandatory  provisions 
as  to  methods.  Not  infrequently  there  is  prolonged  delay  for  years, 
and  perhaps  definitive  denial  of  the  legislation  asked ; and  at  times 
compulsory  legislation  is  enacted  against  the  active  opposition  of 
the  communities  concerned. 

(c)  Another  feature  of  existing  methods  is  the  lack  of  responsi- 
bility for  acting  on  local  problems,  and  the  inefficiency  which  inev- 
itably results  from  this  diffusion  of  responsibility.  Local  officials 
blame  the  legislature ; and  legislators  criticise  the  local  authorities ; 
and  no  one  is  clearly  responsible  or  can  be  held  to  account  for  mis- 
takes and  errors  either  of  omission  or  commission. 

(d)  Existing  legislation  on  municipal  government  is  so  volum- 
inous and  so  scattered  in  numerous  laws  as  to  make  a clear  un- 


420 


derstanding  of  the  local  machinery  and  powers  practically  im- 
possible to  the  ordinary  citizen,  and  difficult  even  for  the  legal  ex- 
pert, as  is  evident  by  the  frequent  litigation  in  the  courts  to  de- 
termine disputed  points. 

(e)  These  difficulties  are  increased  by  the  existence  of  the 
metropolitan  district  including  Chicago  and  Cook  County,  with  a 
population  more  than  twenty  times  that  of  any  other  urban  com- 
munity in  the  state.  The  problems  of  Chicago  are  much  more  num- 
erous than  those  of  any  other  municipal  district ; and  new.  problems 
frequently  arise  there  before  they  appear  in  other  places.  But  the 
difference  is  mainly  one  of  degree,  and  the  same  general  situation 
exists  with  reference  to  municipal  government  throughout  the 
state. 


Advantages  of  Municipal  Home  Rule:  To  meet  these  criti- 

cisms of  existing  methods,  the  following  advantages  are  urged  in 
favor  of  a system  of  municipal  home  rule : 

(a)  It  will  give  the  people  of  each  community  an  opportunity 
to  have  the  kind  of  local  government  they  want,  both  as  to  the  form 
of  organization  and  the  functions  to  be  exercised. 

(b)  It  will  develop  public  interest  in  local  affairs  and  aid  in  the 
political  education  of  the  people,  by  placing  on  the  citizens  of  each 
community  the  responsibility  for  devising,  discussing  and  deciding 
on  the  organization  and  functions  of  local  government. 

(c)  It  will  enable  local  communities  to  deal  with  local  prob- 
lems more  promptly  as  they  arise. 

(d)  It  will  make  local  government  more  flexible  and  better 
adapted  to  local  conditions  than  under  a rigid  system  of  uniform 
legislation ; and  will  also  make  a more  stable  system  for  each  com- 
munity, in  accordance  with  the  wishes  of  the  general  body  of  cit- 
izens, than  under  a regime  of  measures  of  special  application  fre- 
quently amended  by  the  legislature  at  the  request  of  temporary 
local  officials  or  a few  persons  having  influence  with  the  legislature. 

(e)  The  revision  of  city  charters  from  time  to  time  will  sim- 
plify and  make  more  intelligible  the  laws  and  machinery  of  local 
government  for  each  community. 

(f)  It  will  relieve  the  legislature  of  the  burden  of  considering 
local  problems,  and  leave  it  free  to  give  more  attention  to  questions 
of  state-wide  interest. 


Objections  to  Municipal  Home  Rule : There  is  little  or  no  open 
opposition  to  the  general  principle  of  local  self-government  in  the 
United  States.  But  there  are  some  who  believe  that  the  system  of 
local  election  of  local  officers  and  detailed  legislation  conferring 
powers  on  local  authorities  on  which  reliance  has  been  placed  in 


421 


the  past,  is  adequate;  and  that  the  proposals  for  constitutional  home 
rule  and  local  charters  are  open  to  serious  objections. 

A fundamental  criticism  urged  is  that  a constitutional  grant  of 
home  rule  powers  is  inconsistent  with  the  sovereignty  of  the  state, 
and  will  set  up  each  municipality  as  an  imperium  in  imperio.  It  seems 
to  be  feared  that  if  any  home  rule  powers  are  recognized,  it  will 
prove  difficult  to  establish  a limit  to  such  powers  even  in  matters  of 
general  state  interest. 

In  reply  it  may  be  noted  that  practically  all  advocates  of  mu- 
nicipal home  rule  ask  only  for  local  control  of  local  or  municipal  af- 
fairs, and  expressly  recognize  the  need  for  state  control  in  matters 
of  state  concern.  No  new  state  can  be  established  within  the  limits 
of  Illinois  without  the  express  consent  of  the  state. 

Some  more  specific  objections  are  not  always  consistent  with 
each  other.  It  is  said,  on  the  one  hand,  that  a system  of  local  char- 
ters will  introduce  more  variety  and  confusion  in  the  machinery 
and  functions  of  local  government ; and  that  there  is  rather  need 
for  establishing  a uniform  system  by  general  law.  On  the  other 
hand,  it  is  urged  that  the  method  of  revising  and  amending  charters 
by  local  referendum  wilL  make  changes  more  difficult  than  under 
present  methods ; and  in  support  of  this,  attention  is  called  to  sev- 
eral cities  (such  as  San  Francisco  and  Minneapolis)  where  several 
proposed  local  charters  have  failed  to  be  approved  by  the  people. 

To  these  objections  advocates  of  municipal  home  rule  charters 
may  reply  that  the  home  rule  system  is  a satisfactory  mean  between 
a rigid,  uniform  law  for  all  municipalities,  and  a constantly  fluctuat- 
ing body  of  special  legislation,  frequently  changed  in  detail  to  meet 
the  wishes  of  a few,  but  without  adequate  powers  for  dealing  with 
local  problems. 

More  serious  difficulties  are,  however,  raised  by  questions  as  to 
the  application  of  the  general  principle  of  municipal  home  rule.  Ac- 
cepting the  general  principle,  how  are  the  powers  and  functions  of 
municipalities  to  be  defined  and  distinguished  from  those  of  the 
state  legislature?  Municipalities  now  exercise  two  classes  of 
functions — those  of  a distinctly  local  character,  and  those  as  an 
agent  of  the  state ; but  the  line  between  the  two  has  never  been 
clearly  defined.  Is  it  possible  to  define  local  functions  in  general 
terms,  or  to  make  an  enumeration  of  powers  which  will  prove  ade- 
quate for  the  future?  And  as  to  the  state  functions  of  municipali- 
ties, how  can  the  line  be  drawn  between  the  sphere  of  local  action 
and  a satisfactory  method  of  state  control? 


Relation  of  municipal  home  rule  to  the  public  utilities  problem : 

The  question  of  municipal  home  rule  as  to  public  utilities  has  been 
actively  discussed  in  this  state  in  recent  years.  Upon  pages  396-7 
of  this  pamphlet  will  be  found  a statement  regarding  the  present 
status  of  this  matter  in  Illinois,  and  upon  pages  404  and  405  will  be 


422 


found  a statement  regarding  municipal  debt  limits  and  their  rela- 
tion to  the  problem  of  municipal  ownership  of  public  utilities. 

If  under  municipal  home  rule  provisions  cities  are  to  be  granted 
power  to  own  their  public  utilities,  such  a grant  of  power  is  of 
course  worthless  unless  it  is  coupled  with  financial  provisions  per- 
mitting the  exercise  of  the  power  so  granted. 

The  municipal  home  rule  provisions  adopted  in  Michigan  anc 
Ohio  expressly  grant  cities  power  to  determine  their  own  policies 
with  respect  to  ownership  or  operation  of  local  utilities,  and  at  the 
same  time  relax  to  some  extent  municipal  debt  limits  with  respect 
to  debts  incurred  for  this  purpose  (See  appendix,  Art.  VIII,  Secs.  23 
and  24  of  Michigan  constitution ; and  Art.  XVIII,  Secs.  4,  5,  6 and 
12  of  the  Ohio  constitution).  Similar  provisions  also  appear  in  the 
municipal  home  rule  plan  proposed  by  the  National  Municipal 
League,  which  will  also  be  found  in  the  appendix  to  this  bulletin. 

The  problem  of  debt  limitation  is  discussed  in  Bulletin  No.  4, 
on  State  and  Local  Finance,  and  texts  of  typical  constitutional  debt 
limitations  are  printed  in  an  appendix  to  that  bulletin.  If  it  is  de- 
sired to  relax  municipal  debt  limitations  with  respect  to  debts  in- 
curred for  income-producing  properties,  various  methods  present 
themselves  for  the  accomplishment  of  this  purpose : 

(1)  The  plan  of  permitting  the  issue  of  bonds  which  shall  be  an 
obligation  only  against  the  property  of  the  utility,  without  increas- 
ing the  liability  of  the  city.  This  is  the  plan  which  was  held  invalid 
under  the  present  constitution  of  Illinois,  in  the  case  of  Lobdell  v. 
City  of  Chicago,  (227  111.  218)  ; and  is  adopted  by  the  constitutions 
of  Ohio  and  Michigan. 

(2)  The  plan  adopted  in  New  York  under  which  “any  debt 
hereafter  incurred  by  the  city  of  New  York  for  a public  improve- 
ment owned  or  to  be  owned  by  the  city,  which  yields  to  the  city 
current  net  revenue,  after  making  any  necessary  allowance  for  re- 
pairs and  maintenance  for  which  the  city  is  liable,  in  excess  of  the 
interest  on  said  debt  and  of  the  annual  installments  necessary  for 
its  amortization  may  be  excluded  in  ascertaining  the  power  of  said 
city  to  become  otherwise  indebted,  provided  that  a sinking  fund 
for  its  amortization  shall  have  been  established  and  maintained  and 
that  the  indebtedness  shall  not  be  so  excluded  during  any  period  of 
time  when  the  revenue  aforesaid  shall  not  be  sufficient  to  equal  the 
said  interest  and  amortization  installments,  and  except  further 
that  any  indebtedness  heretofore  incurred  by  the  city  of  New  York 
for  any  rapid  transit  or  dock  investment  may  be  so  excluded  pro- 
portionately to  the  extent  to  which  the  current  net  revenue  re- 
ceived by  said  city  therefrom  shall  meet  the  interest  and  amortiza- 
tion installments  thereof,  provided  that  any  increase  in  the  debt  in- 
curring power  of  the  city  of  New  York  which  shall  result  from  the 
exclusion  of  debts  heretofore  incurred  shall  be  available  only  for  the 
acquisition  or  construction  of  properties  to  be  used  for  rapid  transit 
or  dock  purposes.”  A somewhat  similar  provision  is  made  by  the 
Virginia  constitution  of  1902. 


423 


(3)  A combination  of  the  plans  noted  under  (1)  and  (2)  above, 
such  as  has  been  made  in  the  Pennsylvania  constitutional  provisions 
to  be  found  in  the  appendix  to  Bulletin  No.  4. 

(4)  The  Oklahoma  plan  under  which  “any  incorporated  city 

or  town  in  this  state  may,  by  a majority  of  the  qualified  property 
tax  paying  voters  of  such  city  or  town,  voting  at  an  election  to  be 
held  for  that  purpose,  be  allowed  to  become  indebted  in  a larger 
amount  than  that  specified  in  section  twenty-six,  for  the  purpose  of 
purchasing  or  constructing  public  utilities,  or  for  repairing  the 
same,  to  be  owned  exclusively  by  such  city : Provided,  That  any 

such  city  or  town  incurring  any  such  indebtedness  requiring  the 
assent  of  the  voters  as  aforesaid,  shall  have  the  power  to  provide 
for,  and,  before  or  at  the  time  of  incurring  such  indebtedness,  shall 
provide  for  the  collection  of  an  annual  tax  in  addition  to  the  other 
taxes  provided  for  by  the  constitution,  sufficient  to  pay  the  interest 
on  such  indebtedness  as  it  falls  due,  and  also  to  constitute  a sinking 
fund  for  the  payment  of  the  principal  thereof  within  twenty-five 
years  from  the  time  of  contracting  the  same.” 

These  comments  are  of  course  based  upon  the  assumption  that 
some  limitation  upon  municipal  debts  will  remain  in  the  constitu- 
tion. 


A Possible  Home  Rule  Program.  Based  on  the  study  of  con- 
stitutional provisions  and  their  operation  in  other  states,  and  on 
plans  presented  to  the  recent  Ohio  and  New  York  Constitutional 
Conventions,  and  provisions  approved  by  the  National  Municipal 
League,  the  following  outline  for  a possible  municipal  home  rule 
program  is  presented  as  representing  • the  views  of  moderate  ad- 
vocates of  municipal  home  rule  who  recognize  the  need  for  certain 
limitations  and  for  a suitable  measure  of  state  control. 

Any  constitutional  provision  on  this  subject  should  be  as  brief 
as  possible,  consistent  with  an  adequate  grant  of  municipal  author- 
ity. But  it  will  be  necessary  to  make  definite  statements  to  cover 
questions  which  have  arisen  in  other  states.  On  the  one  hand  the 
extreme  brevity  and  vagueness  of  the  Oregon  and  Texas  provisions 
should  be  avoided ; and  on  the  other  hand  details  of  procedure  and 
extended  specific  provisions  should  be  omitted,  especially  at  such 
length  as  those  of  California. 

As  to  the  character  and  extent  of  the  powers  to  be  granted  to 
municipalities,  there  should  be : 

1.  A broad,  general  grant  of  power  of  local  or  municipal  gov- 

ernment. 

2.  In  addition,  an  enumeration  of  any  recognized  state  func- 

tions intended  to  be  conferred,  with  a clear  indication  of 
the  extent  to  which  overlapping  districts  with  separate 
corporate  authorities  may  be  consolidated,  and  the  rela- 
tions between  county  and  city  government. 


424 


3.  A provision  that  enumerated  powers  are  not  to  be  construed 

as  limiting  the  general  grant,  except  as  specifically  pro- 
vided. 

4.  The  power  of  municipalities  to  frame,  adopt  and  amend  their 

own  charters. 

5.  Details  of  charter  procedure  are  not  necessary  in  the  consti- 

tution; but  if  these  are  provided,  they  should  not  be  ex- 
clusive, and  other  alternative  methods  should  be  author- 
ized by  law  or  in  local  charters. 

6.  Some  provisions  applicable  primarily  to  Chicago  and  Cook 

County  may  be  necessary;  but  such  detailed  restrictions 
as  those  in  Section  34  of  Article  IV  of  the  present  con- 
stitution (adopted  in  1904)  should  be  avoided;  and  pro- 
visions for  such  matters  as  city  and  county  consolidation 
should  be  framed  in  general  terms  so  as  to  meet  the  needs 
of  other  communities  in  the  future. 

Limitations  and  restrictions  should  include : 

1.  Clear  indications  as  to  how  far  local  charters  and  amend- 

ments will  be  subordinate  to : (a)  General  laws  on  mat- 
ters of  state  concern  not  administered  by  local  officials ; 
(b)  General  laws  on  matters  of  state  concern  administered 
by  local  officials ; (c)  General  laws  (applicable  to  all 
municipalities)  dealing  with  local  or  municipal  affairs. 
Under  (a),  the  general  principle  should  be  that  of  state 
control,  with  express  enumeration  of  any  local  powers  in- 
tended to  be  granted.  Under  (c)  the  general  rule  should 
be  that  of  municipal  authority,  with  definite  specification 
as  to  the  degree  or  methods  of  any  state  control  to  be  re- 
served. Under  (b)  any  municipal  powers  should  be  enum- 
erated, and  there  should  be  definite  provisions  as  to  the 
scope  of  state  and  municipal  action. 

2.  Provisions  relating  to  taxation,  de^t,  loaning  credit  and  fi- 

nancial accounts  and  reports. 

3.  Provisions  authorizing  the  legislature  by  general  law  to  pro- 

vide for  the  incorporation  of  new  cities  and,  villages ; and 
to  provide  by  general  law  for  the  government  of  cities 
and  villages,  which  do  not  wish  to  make  their  own  char- 
ters, under  which  laws  provision  may  be  made  for  several 
optional  forms  of  municipal  organization,  any  one  of  which 
may  be  adopted  by  local  referendum. 

Provision  should  also  be  made  for  filing  an  official  copy  of 
local  charters  and  amendments  in  the  office  of  the  Secretary  of 
State ; and  for  their  publication  by  the  state. 

If  a municipal  home  rule  policy  is  to  be  adopted,  constitutional 
provisions  meeting  the  general  requirements  above  outlined  may  be 
based  largely  on  the  provisions  adopted  in  Michigan  and  Ohio,  and 
on  those  recommended  by  the  National  Municipal  League.  A 
draft  is  printed  below,  which  seeks  to  meet  the  chief  problems  at 


425 


issue,  if  the  plan  is  to  be  adopted.  This  draft  contains  no  provision 
regarding-  municipal  debts,  although  this  subject  bears  close  relation 
to  municipal  home  rule.  For  a discussion  of  municipal  debts,  see 
pages  421-3  of  this  bulletin.  Provisions  regarding  special  legisla- 
tion and  excess  condemnation  are  included  in  this  draft,  although 
they  relate  also  to  matters  of  more  general  constitutional  policy, 
and  provisions  as  to  them  may  come  elsewhere  in  a revised  con- 
stitution. 


42G 


DRAFT  OF  MUNICIPAL  HOME  RULE  PROVISIONS. 


Section  1.  Incorporation — General,  Special  and  Optional  Laws. 

Provision  shall  be  made  by  general  law  for  the  establishment  of 
municipal  corporations,  and  general  laws  shall  be  passed  for  the 
organization  and  government  of  all  municipal  corporations  which 
do  not  adopt  laws  or  charters  in  accordance  with  other  provisions 
of  this  article.  Laws  may  also  be  passed  for  the  organization  and 
government  of  cities  and  villages,  which  laws  shall  become  effect- 
ive in  any  city  or  village  only  when  submitted  to  the  electors  thereof 
and  approved  by  a majority  of  those  voting  thereon.  Except  as 
otherwise  provided  in  this  constitution,  the  General  Assembly  shall 
pass  no  local  or  special  law  in  any  case  where  a general  law  can 
be  made  applicable  and  whether  a general  law  can  be  made  appli- 
cable shall  be  a judicial  question.  No  such  local  or  special  law 
shall  take  effect  until  submitted  to  the  electors  of  the  municipality 
to  be  affected  thereby,  and  approved  by  a majority  of  those  voting 
thereon. 

Section  2.  Consolidation:  Laws  may  be  passed  to  provide 

for  consolidating  in  whole  or  in  part  in  the  government  of  any  city 
or  village  the  powers  vested  in  the  town,  school,  library,  park, 
sanitary,  drainage  or  other  local  governments  and  authorities 
either  wholly  or  partly  within  the  territorial  limits  of  such  city  or 
village,  and  to  provide  for  the  assumption,  adjustment,  and  pro- 
tection of  the  financial  and  other  rights  and  obligations  of  all  the 
governments  and  authorities  affected  by  such  consolidation.  Any 
law  providing  for  the  consolidation  with  any  city  or  village  of  any 
such  local  government  or  authority  being  partly  within  and  partly 
without  the  territorial  limit  of  such  city  shall  also  provide  either 
for  the  abolition  of  such  local  government  or  authority  and  the 
termination  of  the  powers  vested  therein  with  respect  to  the  terri- 
tory without  the  limits  of  such  city  or  village,  or  for  the  future 
exercise  of  the  powers  of  such  local  government  or  authority  with 
respect  to  such  territory  in  such  manner  as  shall  be  prescribed  by 
law.  No  law  passed  in  pursuance  of  the  provisions  of  this  section 
shall  take  effect  until  submitted  to  the  electors  of  the  city  or  village 
concerned  and  also  to  the  electors  of  any  local  government  or 
authority  being  partly  within  and  partly  without  the  territorial 
limits  of  such  city  or  village  and  approved  by  a majority  of  those 
voting  thereon  in  each  municipality. 

Section  3.  City  and  County  Consolidation:  Any  city  which 

has  attained  a population  of  100,000  inhabitants  may  be  authorized 
by  law  to  assume  within  its  then  existing  and  future  territorial 


427 


limits  all  powers  and  duties  which  then  or  thereafter  would  other- 
wise be  vested  by  the  constitution  or  by  law  in  counties  or  in  any 
county  officer,  and  to  exercise  such  powers  and  duties  through  such 
of  its  officers  as  mav  be  designated  by  law  or  by  the  charter  or 
ordinances  of  said  city,  and  the  county  government  and  countv 
officers  for  the  territory  within  the  limits  of  any  such  citv  shall 
thereupon  be  abolished.  Any  law  passed  in  pursuance  of  this  sec- 
tion shall  provide  for  the  assumption,  adiustment  and  protection 
of  the  financial  and  other  rights  and  obligations  of  the  respective 
governments  or  officers  affected  therebv.  and  no  such  law  shall 
become  effective  as  to  any  citv  until  submitted  to  the  electors  of 
such  citv  and  also  to  the  electors  of  the  countv  or  counties  con- 
cerned and  approved  by  a majority  of  those  voting  thereon  in  each 
case. 

Section  4.  Charters : The  electors  of  anv  citv  or  village  shall 
have  the  power  to  frame,  adopt  and  amend  a charter  for  its  govern- 
ment. and  to  amend  any  existing  charter  or  law  relating  to  its 
organization  and  government  heretofore  granted  or  passed  bv  the 
General  Assembly.  No  such  charter  or  amendment  thereto  and 
no  amendment  to  any  existing  charter  or  law  shall  take  effect  until 
submitted  to  the  electors  of  such  citv  or  village  and  approved  bv 
a maioritv  of  those  voting  thereon,  and  until  a certified  copv 
thereof  has  been  filed  as  a public  fecord  in  the  office  of  the  Sec- 
retary of  State.  The  provisions  of  this  section  shall  be  self-exe- 
cuting: but  the  manner  in  which  the  powers  herein  granted  shall 
be  exercised  may  be  regulated  bv  general  law.  Until  such  law  shall 
be  passed,  the  regularly  constituted  legislative  authoritv  of  such 
citv  or  village  mav  bv  ordinance  prescribe  the  manner  in  which 
such  powers  shall  be  exercised. 

Section  5.  Powers:  Each  city  and  village  shall  have  and  is 

herebv  granted  authoritv  to  exercise  all  powers  relating  to  munici- 
pal affairs,  and  no  enumeration  of  powers  in  this  constitution  or 
any  law  shall  be  deemed  to  limit  or  restrict  the  general  grant  of 
authority  hereby  conferred  : but  this  grant  of  authoritv  shall  not 
be  deemed  to  limit  or  restrict  the  power  of  the  General  Assemblv 
to  enact  general  laws  applicable  to  cities  and  villages  in  matters 
relating  to  state  affairs. 

The  following  shall  be  deemed  to  be  a part  of  the  powers  con- 
ferred upon  cities  and  villages  by  this  section : 

fa)  To  levv,  assess  and  collect  taxes  and  to  borrow  money, 
within  the  limits  prescribed  bv  law:  and  to  make  local  improve- 
ments and  to  provide  for  local  services  by  special  assessment,  by 
special  taxation,  or  otherwise : 

fb)  To  furnish  all  local  public  services ; to  make  local  public 
improvements : to  acquire,  construct,  own,  lease,  maintain  and 
operate  local  public  utilities,  and  to  grant  licenses  therefor  and 
regulate  the  exercise  thereof,  subject  to  restrictions  imposed  by  law 
for  the  protection  of  other  communities ; 


428 


(c)  Subject  to  such  conditions  as  may  be  prescribed  by  law, 
to  acquire  by  condemnation  or  otherwise,  property  for  public  pur- 
poses ; 

(d)  When  appropriating  or  otherwise  acquiring  property  for 
public  use,  to  appropriate  or  acquire  in  furtherance  of  such  public 
use  an  excess  over  that  actually  required  for  the  improvement ; to 
sell  such  excess  with  such  restrictions  as  shall  be  appropriate  to 
preserve  and  protect  the  improvement  made ; and  to  issue  bonds 
to  supply  funds,  in  whole  or  in  part,  to  pay  for  the  excess  property 
so  appropriated  or  otherwise  acquired,  but  bonds  so  issued  shall 
by  their  terms  be  made  a lien  against  the  whole  or  any  part  of  such 
excess  property,  and  they  shall  not  be  a liability  of  the  municipality  nor 
be  included  in  any  limitation  of  the  bonded  indebtedness  of  such  mu- 
nicipality prescribed  by  law; 

(e)  To  organize  and  administer  public  schools  and  libraries, 
subject  to  laws  establishing  standards  for  the  state; 

(f)  To  adopt  and  enforce  within  its  limits  local  police,  sanitary 
and  other  similar  regulations. 

Section  6.  Reports : General  laws  may  be  passed  requiring 

reports  from  cities  and  villages  as  to  their  financial  transactions 
and  condition,  and  providing  for  the  examination  of  the  books, 
accounts  and  vouchers  of  all  municipal  authorities  and  of  public 
undertakings  conducted  by  such  authorities. 

Section  7.  Elections:  Unless  otherwise  provided  by  law,  all 
municipal  elections  shall  be  conducted  by  the  election  officials 
authorized  to  conduct  general  elections  for  state  and  county  officers. 


APPENDIX  No.  1.  REFERENCES. 


Citizens  Union  of  the  City  of  New  York: 

Preliminary  Brief  for  Municipal  Home  Rule. 

A Brief  for  Municipal  Home  Rule  and  Digest  of  Proposals  sub- 
mitted to  the  Constitutional  Convention  of  1915. 

An  analysis  and  criticism  of  the  Home  Rule  Amendment  pro- 
posed by  the  Committee  on  Cities. 

Cyclopedia  of  American  Government,  II,  325-329;  475-486. 
Constitutional  Home  Rule  for  Ohio  Cities.  Report  of  the  Munici- 
pal Home  Rule  Committee  of  the  Municipal  Association  of  Cleve- 
land. 

Deming,  H.  E.  Government  of  American  Cities  (1909)  pp  79-97. 
Eaton,  A.  E.  The  Right  of  Self  Government,  Harvard  Law  Review, 
XIII,  441,  570,  638;  XIV,  20,  116. 

Goodnow,  F.  J.  Municipal  Government  (1909)  ch.  IV. 

Goodnow,  F.  J.  Municipal  Home  Rule,  (1906). 

Hatton,  A.  R.  Digest  of  City  Charters.  Chicago,  (1906). 

Illinois  Municipal  League  Proceedings : 

First  Annual  Convention  (1914).  Municipal  Home  Rule,  by 
Russell  McCulloch  Story. 

Fourth  Annual  Convention  (1917).  Papers  on  Municipal  Home 
Rule  in  Missouri,  Michigan,  Texas,  Nebraska  and  Oregon. 
McBain,  H.  L.  The  Law  and  Practice  of  Municipal  Home  Rule 
(1916). 

McBain,  H.  L.  American  City  Progress  and  the  Law  (1918). 
Massachusetts  Constitutional  Convention  Commission,  1917. 
Bulletin  No.  11.  Municipal  Home  Rule. 

. Bulletin  No.  14.  Constitutional  Restrictions  on  Municipal 
Indebtedness. 

Michigan  Constitutional  Convention,  1907-08. 

Proceedings  and  Debates,  I,  466 ; II,  806-850 ; 1047-1048 ; 1106- 
1107;  1149-1156;  1324-1335,  1364,  1382-1383. 

Munro,  W.  B.  Government  of  American  Cities  (1912)  pp  54-70. 
National  Municipal  League:  A New  Municipal  Program,  1919. 
New  York  State  Constitutional  Convention  Commission,  1915. 

Revision  of  the  State  Constitution.  Papers  on  Special  Topics, 
Part  II. 

Home  Rule  for  Cities,  by  H.  L.  McBain,  pp  1-38 ; 

A Proposal  for  a Revision  of  the  Municipal  Article,  by  L.  A. 
Tanzer,  pp  37-56 ; 


430 


Local  Government  and  the  State  Constitution,  by  M.  H.  Glynn, 
pp  57-60; 

The  City  and  the  State  Constitution,  by  J.  P.  Mitchell,  pp 
61-67. 

New  York  Constitutional  Convention,  1915,  Documents  No.  36. 

Report  of  the  Committee  on  Cities  in  relation  to  several  pro- 
posed amendments  relative  to  home  rule  for  cities  and  vil- 
lages. 

Minority  report  in  relation  to  home  rule  for  cities  and  villages, 
by  Mr.  Foley  and  Mr.  Franchot. 

New  York  Constitutional  Convention,  1915. 

Revised  Record  II,  1161-2176;  III,  2904-2982;  IV,  3708-3726, 
3885-3887. 

Ohio  Constitutional  Convention,  1912. 

Proceedings  and  Debates  II,  1430,  1433-1498,  1860-1869. 

Schaffner,  Margaret  A.  Municipal  Home  Rule  Charters. 

Comparative  Legislation  Bulletin  No.  18  of  the  Wisconsin  Lh 
brary  Commission,  1908. 


431 


APPENDIX  No.  2.  HOME  RULE  PROVISIONS  OF  STATE 
CONSTITUTIONS. 


1.  Missouri.  Article  IX — Counties,  Cities  and  Towns: 

Sec.  15.  In  all  counties  having  a city  therein  containing  over 
one  hundred  thousand  inhabitants,  the  city  and  county  government 
thereof  may  be  consolidated  in  such  manner  as  may  be  provided  by 
law. 

Sec.  16.  Any  city  having  a population  of  more  than  one  hundred 
thousand  inhabitants  may  frame  a charter  for  its  own  government, 
consistent  with  and  subject  to  the  Constitution  and  laws  of  this 
State,  by  causing  a board  of  thirteen  freeholders,  who  shall  have 
been  for  at  least  five  years  qualified  voters  thereof,  to  be  elected 
by  the  qualified  voters  of  such  city  at  any  general  or  special  elec- 
tion ; which  board  shall,  within  ninety  days  after  such  election, 
return  to  the  chief  magistrate  of  such  city  a draft  of  such  charter, 
signed  by  the  members  of  such  board  or  a majority  of  them.  Within 
thirty  days  thereafter,  such  proposed  charter  shall  be  submitted  to 
the  qualified  voters  of  such  city,  at  a general  or  special  election, 
and  if  four-sevenths  of  such  qualified  voters  voting  thereat  shall 
ratify  the  same,  it  shall,  at  the  end  of  thirty  days  thereafter,  become 
the  charter  of  such  city,  and  supersede  any  existing  charter  and 
amendments  thereof.  A duplicate  certificate  shall  be  made,,  setting 
forth  the  charter  proposed  and  its  ratification,  which  shall  be 
signed  by  the  chief  magistrate  of  such  city  and  authenticated  by  its 
corporate  seal.  One  of  such  certificates  shall  be  deposited  in  the 
office  of  the  Secretary  of  State,  and  the  other,  after  being  recorded 
in  the  office  of  the  recorder  of  deeds  for  the  county  in  which  such 
city  lies,  shall  be  deposited  among  the  archives  of  such  city,  and 
all  courts  shall  take  judicial  notice  thereof.  Such  charter,  so 
adopted,  may  be  amended  by  a proposal  therefor,  made  by  the  law- 
making authorities  of  such  city,  published  for  at  least  thirty  days 
in  three  newspapers  of  largest  circulation  in  such  city,  one  of  which 
shall  be  a newspaper  printed  in  the  German  language,  and  accepted 
by  three-fifths  of  the  qualified  voters  of  such  city,  voting  at  a gene- 
ral or  special  election,  and  not  otherwise ; but  such  charter  shall 
always  be  in  harmony  with  and  subject  to  the  Constitution  and 
laws  of  the  State. 

Sec.  17.  It  shall  be  a feature  of  all  such  charters  that  they 
shall  provide,  among  other  things,  for  a mayor  or  chief  magistrate, 
and  two  houses  of  legislation,  one  of  which  at  least  shall  be  elected 
by  general  ticket  ; and  in  submitting  any  such  charter  or  amend- 
ment thereto  to  the  qualified  voters  of  such  city,  any  alternative 


432 


section  or  article  may  be  presented  for  the  choice  of  the  voters, 
and  may  be  voted  separately,  and  accepted  or  rejected  separately, 
without  prejudice  to  other  articles  or  sections  of  the  charter  or  any 
amendment  thereto. 

Sec.  18-25.  Relating  to  the  City  of  St.  Louis. 


2.  Colorado.  Article  XX. 

Secs.  1-5,  7.  City  and  County  of  Denver. 

Sec.  6.  Cities  of  the  First  and  Second  Class. 

The  people  of  each  city  or  town  in  this  State,  having  a popula- 
tion of  two  thousand  inhabitants  as  determined  by  the  last  pre- 
ceding census  taken  under  the  authority  of  the  United  States,  the 
State  of  Colorado  or  said  city  or  town,  are  hereby  vested  with, 
and  they  shall  always  have,  power  to  make,  amend,  add  to  or  replace 
the  charter  or  ordinances  thereof,  including  the  calling  or  notice 
extend  to  all  its  local  and  municipal  matters. 

Such  charter  and  the  ordinances  made  pursuant  thereto  in  such 
matters  shall  supersede  within  the  territorial  limits  and  other  juris- 
diction of  said  city  or  town  any  law  of  the  State  in  conflict  there- 
with. 

Proposals  for  charter  conventions  shall  be  submitted  by  the 
city  council  or  board  of  trustees,  or  other  body  in  which  the  legis- 
lative powers  of  the  city  or  town  shall  then  be  vested,  at  special 
elections,  or  at  general  state  or  municipal  elections,  upon  petitions 
filed  by  qualified  electors,  all  in  reasonable  conformity  with  section 
5 of  this  article,  and  all  proceedings  thereon  or  thereafter  shall  be 
in  reasonable  conformity  with  sections  4 and  5 of  this  article. 

From  and  after  the  certifying  to  and  filing  with  the  Secretary 
of  State  of  a charter  framed  and  approved  in  reasonable  conformity 
with  the  provisions  of  this  article,  such  city  or  town,  and  the  citi- 
zens thereof,  shall  have  the  powers  set  out  in  sections  1,  4 and  5 
of  this  article,  and  all  other  powers  necessary,  requisite  or  proper 
for  the  government  and  administration  of  its  local  and  municipal 
matters,  including  power  to  legislate  upon,  provide,  regulate,  con- 
duct and  control : 

a.  The  creation  and  terms  of  municipal  officers,  agencies  and 
employments ; the  definition,  regulation  and  alteration  of  the 
powers,  duties,  qualifications  and  terms  of  tenure  of  all  municipal 
officers,  agents  and  employees; 

b.  The  creation  of  police  courts ; the  definition  and  regulation 
of  the  jurisdiction,  powers  and  duties  thereof,  and  the  election  or 
appointment  of  police  magistrates  therefor; 

c.  The  creation  of  municipal  courts ; the  definition  and  regu- 
lation of  the  jurisdiction,  powers  and  duties  thereof,  and  the  election 
or  appointment  of  the  officers  thereof ; 

d.  All  matters  pertaining  to  municipal  elections  in  such  city 
or  town  and  to  electoral  votes  therein  on  measures  submitted  under 
the  charter  of  said  city  or  town,  which  shall  be  its  organic  law  and 


433 


and  the  date  of  such  election  or  vote,  the  registration  of  voters, 
nominations,  nomination  and  election  systems,  judges  and  clerks 
of  election,  the  form  of  ballots,  balloting,  challenging,  canvassing, 
certifying  the  result,  securing  the  purity  of  elections,  guarding 
against  abuses  of  the  elective  franchise,  and  tending  to  make  such 
elections  or  electoral  votes  nonpartisan  in  character ; 

e.  The  issuance,  refunding  and  liquidation  of  all  kinds  of 
municipal  obligations  including  bonds  and  other  obligations  of  park, 
water  and  local  improvement  districts ; 

f.  The  consolidation  and  management  of  park  or  water  dis- 
tricts in  such  cities  or  towns  or  within  the  jurisdiction  thereof; 
but  no  such  consolidation  shall  be  effective  until  approved  by  the 
vote  of  a majority,  in  each  district  to  be  consolidated,  of  the  quali- 
fied electors  voting  therein  upon  the  question ; 

g.  The  assessment  of  property  in  such  city  or  town  for  munic- 
ipal taxation  and  the  levy  and  collection  of  taxes  thereon  for  munic- 
ipal purposes  and  special  assessments  for  local  improvements ; 
such  assessment,  levy  and  collection  of  taxes  and  special  assess- 
ments to  be  made  by  municipal  officials  or  by  the  county  or  state 
officials  as  may  be  provided  by  the  charter; 

h.  The  imposition,  enforcement  and  collection  of  fines  and 
penalties  for  the  violation  of  any  of  the  provisions  of  the  charter, 
or  of  any  ordinance  adopted  in  pursuance  of  the  charter. 

It  is  the  intention  of  this  article  to  grant  and  confirm  to  the 
people  of  all  municipalities  coming  within  its  provisions  the  full 
right  'of  self-government  in  both  local  and  municipal  matters  and 
the  enumeration  herein  of  certain  powers  shall  not  be  construed  to 
deny  to  such  cities  and  towns,  and  to  the  people  thereof,  any  right 
or  pow"er  essential  or  proper  to  the  full  exercise  of  such  right. 

The  statutes  of  the  State  of  Colorado,  so  far  as  applicable,  shall 
continue  to  apply  to  such  cities  and  towns,  except  in  so  far  as 
superseded  by  the  charters  of  such  cities  and  towns  or  by  ordi- 
nance passed  pursuant  to  such  charters. 

All  provisions  of  the  charters  of  the  City  and  County  of  Denver 
and  the  Cities  of  Pueblo,  Colorado  Springs  and  Grand  Junction, 
as  heretofore  certified  to  and  filed  with  the  Secretary  of  'State,  and 
of  the  charter  of  any  other  city  heretofore  approved  by  a majority 
of  those  voting  thereon  and  certified  to  and  filed  with  the  Secretary 
of  State,  which  provisions  are  not  in  conflict  with  this  article,  and 
all  elections  and  electoral  votes  heretofore  had  under  and  pursuant 
thereto,  are  hereby  ratified,  affirmed  and  validated  as  of  their  date. 

Any  act  in  violation  of  the  provisions  of  such  charter  or  of  any 
ordinance  thereunder  shall  be  criminal  and  punishable  as  such  when 
so  provided  by  any  statute  now  or  hereafter  in  force. 

The  provisions  of  this  section  6 shall  apply  to  the  City  and 
County  of  Denver. 

This  article  shall  be  in  all  respects  self-executing.  (As  amended 
Nov.  5,  1912). 

Sec.  8.  Anything  in  the  Constitution  of  this  state  in  conflict 
or  inconsistent  with  the  provisions  of  this  amendment  is  hereby 


434 


declared  to  be  inapplicable  to  the  matters  and  things  by  this 
amendment  covered  and  provided  for. 


3.  Michigan.  Article  VIII — Local  Government — Cities  and  Vil- 
lages. 

Sec.  20.  The  legislature  shall  provide  by  a general  law  for 
the  incorporation  of  cities,  and  by  a general  law  for  the  incorpora- 
tion of  villages ; such  general  laws  shall  limit  their  rate  of  taxation 
for  municipal  purposes,  and  restrict  their  powers  of  borrowing 
money  and  contracting  debts. 

Sec.  21.  Under  such  general  laws,  the  electors  of  each  city 
and  village  shall  have  power  and  authority  to  frame,  adopt  and 
amend  its  charter,  and  to  amend  an  existing  charter  of  the  city  or 
village  heretofore  granted  or  passed  by  the  legislature  for  the 
government  of  the  city  or  village  and,  through  its  regularly  con- 
stituted authority,  to  pass  all  laws  and  ordinances  relating  to  its 
municipal  concerns,  subject  to  the  constitution  and  general  laws  of 
this  state. 

Sec.  22.  Any  city  or  village  may  acquire,  own,  establish  and 
maintain,  either  within  or  without  its  corporate  limits,  parks,  boule- 
vards, cemeteries,  hospitals,  almshouses  and  all  works  which  in- 
volve the  public  health  or  safety. 

Sec.  23.  Subject  to  the  provisions  of  this  constitution,  any 
city  or  village  may  acquire,  own  and  operate,  either  within  or  with- 
out its  corporate  limits,  public  utilities  for  supplying  water,  light, 
heat,  power  and  transportation  to  the  municipality  and  the  inhabi- 
tants thereof ; and  may  also  sell  and  deliver  water,  heat,  power  and 
light  without  its  corporate  limits  to  an  amount  not  to  exceed  twenty- 
five  per  cent  of  that  furnished  by  it  within  the  corporate  limits ; 
and  may  operate  transportation  lines  without  the  municipality 
wkhin  such  limits  as  may  be  prescribed  by  law : Provided,  That 

the  right  to  own  or  operate  transportation  facilities  shall  not  extend 
to  any  city  or  village  of  less  than  twenty-five  thousand  inhabitants. 

Sec.  24'.  When  a city  or  village  is  authorized  to  acquire  or 
operate  any  public  utility,  it  may  issue  mortgage  bonds  therefor 
beyond  the  general  limit  of  bonded  indebtedness  prescribed  by 
law : Provided,  That  such  mortgage  bonds  issued  beyond  the 

general  limit  of  bonded  indebtedness  prescribed  by  law  shall  not 
impose  any  liability  upon  such  city  or  village,  but  shall  be  secured 
only  upon  the  property  and  revenues  of  such  public  utility,  in- 
cluding a franchise  stating  the  terms  upon  which,  in  case  of  fore- 
closure, the  purchaser  may  operate  the  same,  which  franchise  shall 
in  no  case  extend  for  a longer  period  than  twenty  years  from  the 
date  of  the  sale  of  such  utility  and  franchise  on  foreclosure. 

Sec.  25.  No  city  or  village  shall  have  power  to  abridge  the 
right  of  elective  franchise,  to  loan  its  credit,  nor  to  assess,  levy  or 
collect  any  tax  or  assessment  for  other  than  a public  purpose.  Nor 
shall  any  city  or  village  acquire  any  public  utility  or  grant  any 


435 


public  utility  franchise  which  is  not  subject  to  revocation  at  the 
will  of  the'  city  or  village,  unless  such  proposition  shall  have  first 
received  the  affirmative  vote  of  three-fifths  of  the  electors  of  such 
city  or  village  voting  thereon  at  a regular  or  special  municipal  elec- 
tion ; and  upon  such  proposition  women  taxpayers  having  the 
qualifications  of  male  electors  shall  be  entitled  to  vote. 


4.  Ohio.  Article  XVIII — Municipal  corporations. 

Sec.  1.  Municipal  corporations  are  hereby  classified  into*  cities 
and  villages.  All  such  corporations  having  a population  of  five  thou- 
sand or  over  shall  be  cities ; all  others  shall  be  villages.  The  method 
of  transition  from  one  class  to  the  other  shall  be  regulated  by  law.  (As 
amended  Sept.  3,  1912.) 

Sec.  2.  General  laws  shall  be  passed  to  provide  for  the  incor- 
poration and  government  of  cities  and  villages ; and  additional  laws 
may  also  be  passed  for  the  government  of  municipalities  adopting  the 
same ; but  no  such  additional  law  shall  become  operative  in  any  muni- 
cipality unt:l  it  shall  have  been  submitted  to  the  electors  thereof,  and 
affirmed  by  a majority  of  those  voting  thereon,  under  regulations  to 
be  established  by  law.  (As  amended  Sept.  3,  1912.) 

Sec.  3.  Municipalities  shall  have  authority  to  exercise  all  powers 
of  local  self-government  and  to  adopt  and  enforce  within  their  limits 
such  local  police,  sanitary  and  other  similar  regulations,  as  are  not  in 
conflict  with  general  laws.  (As  amended  Sept.  3,  1912.) 

Sec.  4.  Any  municipality  may  acquire,  construct,  own,  lease  and 
operate  within  or  without  its  corporate  limits,  any  public  utility  the 
product  or  service  of  which  is  or  is  to  be  supplied  to  the  municipality 
or  its  inhabitants,  and  may  contract  with  others  for  any  such  product 
or  service.  The  acquisition  of  any  such  public  utility  may  be  by  con- 
demnation or  otherwise,  and  a municipality  may  acquire  thereby  the 
use  of,  or  full  title  to,  the  property  and  franchise  of  any  company  or 
person  supplying  to  the  municipality  or  its  inhabitants  the  service  or 
product  of  any  such  utility.  (As  amended  Sept.  3,  1912.) 

Sec.  5.  Any  municipality  proceeding  to  acquire,  construct,  own, 
lease  or  operate  a public  utility,  or  to  contract  with  any  person  or 
company  therefor,  shall  act  by  ordinance  and  no  such  ordinance  shall 
take  effect  until  after  thirty  days  from  its  passage.  If  within  said 
thirty  days  a petition  signed  by  ten  per  centum  of  the  electors  of  the 
municipality  shall  be  filed  with  the  executive  authority  thereof  de- 
manding a referendum  on  such  ordinance  it  shall  not  take  effect  until 
submitted  to  the  electors  and  approved  by  a majority  of  those  voting 
thereon.  The  submission  of  any  such  question  shall  be  governed  by  all 
the  provisions  of  section  8 of  this  article  as  to  the  submission  of  the 
question  of  choosing  a charter  commission.  (As  amended  Sept.  3, 
1912.) 

Sec.  6.  Any  municipality,  owning  or  operating  a public  utility 
for  the  purpose  of  supplying  the  service  or  product  thereof  to  the 
municipality  or  its  inhabitants,  may  also  sell  and  deliver  to  others  any 


436 


transportation  service  of  such  utility  and  the  surplus  product  of  any 
other  utility  in  an  amount  not  exceeding  in  either  case  fifty  per  centum 
of  the  total  service  or  product  supplied  by  such  utility  within  the 
municipality.  (As  amended  Sept.  3,  1912.) 

w5cc.  v.  Any  ni  unicipality  may  frame  and  adopt  or  amend  a 
charter  for  its  government  ?«id  m_ay,  subject  to  the' provisions  of  sec- 
tion 3 of  this  article,  exercise  thereunder  all  powers  of  local  self- 
government.  (As  amended  Sept.  3,  1912.) 

Sec.  8.  The  legislative  authority  of  any  city  or  village  may  by  a 
two-thirds  vote  of  its  members,  and  upon  petition  of  ten  per  centum 
of  thp  electors  shall  forthwith,  provide  by  ordinance  for  the  sub- 
mission to  the  electors,  of  the  question,  “Shall  a commission  be  chosen 
to  frame  a charter.”  The  ordinance  providing  for  the  submission  of 
such  question  shall  require  that  it  be  submitted  to  the  electors  at  the 
next  regular  municipal  election  if  one  shall  occur  not  less  than  sixty 
nor  more  than  one  hundred  and  twenty  days  after  its  passage ; other- 
wise it  shall  provide  for  the  submission  of  the  question  at  a special 
election  to  be  called  and  held  within  the  time  aforesaid.  The  ballot 
containing  such  question  shall  bear  no  party  designation,  and  provision 
shall  be  made  thereon  for  the  election  from  the  municipality  at  large 
of  fifteen  electors  who  shall  constitute  a commission  to  frame  a char- 
ter; provided  that  a majority  of  the  electors  voting  on  such  question 
shall  have  voted  in  the  affirmative.  Any  charter  so  framed  shall  be 
submitted  to  the  electors  of  the  municipality  at  an  election  to  be  held 
at  a time  fixed  by  the  charter  commission  and  within  one  year  from 
the  date  of  its  election,  provision  for  which  shall  be  made  by  the  legis- 
lative authority  of  the  municipality  in  so  far  as  not  prescribed  by 
general  law.  Not  less  than  thirty  days  prior  to  such  election  the  clerk 
of  the  municipality  shall  mail  a copy  of  the  proposed  charter  to  each 
elector  whose  name  appears  upon  the  poll  or  registration  books  of  the 
last  regular  or  general  election  held  therein.  If  such  proposed  charter 
is  approved  by  a majority  of  the  electors  voting  thereon  it  shall  be- 
come the  charter  of  such  municipality  at  the  time  fixed  therein.  (As 
amended  Sept.  3,  1912.) 

Sec.  9.  Amendments  to  any  charter  framed  and  adopted  as 
herein  provided  may  be  submitted  to  the  electors  of  a municipality  by 
a two-thirds  vote  of  the  legislative  authority  thereof,  and  upon  peti- 
tions signed  by  ten  per  centum  of  the  electors  of  the  municipality  set- 
ting forth  any  such  proposed  amendment,  shall  be  submitted  by  such 
legislative  authority.  The  submission  of  proposed  amendments  to  the 
electors  shall  be  governed  by  the  requirements  of  section  8 as  to  the 
submission  of  the  question  of  choosing  a charter  commission;  and 
copies  of  proposed  amendments  shall  be  mailed  to  the  electors  as  here- 
inbefore provided  for  copies  of  a proposed  charter.  If  any  such 
amendment  is  approved  by  a majority  of  the  electors  voting  thereon, 
it  shall  become  a part  of  the  charter  of  the  municipality.  A copy  of 
said  charter  or  any  amendment  thereto  shall  be  certified  to  the  Secre- 
tary of  State,  within  thirty  days  after  adoption  by  a referendum  vote. 
(As  amended  Sept.  3,  1912.) 

Sec.  10.  A municipality  appropriating  or  otherwise  acquiring 
property  for  public  use  may  in  furtherance  of  such  public  use  appro- 


437 


priate  or  acquire  an  excess  over  that  actually  to  be  occupied  by  the 
improvement,  and  may  sell  such  excess  with  such  restrictions  as  shall 
be  appropriate  to  preserve  the  improvement  made.  Bonds  may  be 
issued  to  supply  the  funds  in  whole  or  in  part  to- pay  for  the  excess 
property  so  appropriated  or  otherwise  acquired,  but  said  bonds  shall 
be  a lien  only  against  the  property  so  acquired  for  the  improvement 
and  excess,  and  they  shall  not  be  a liability  of  the  municipality  nor  be 
included  in  any  limitation  of  the  bonded  indebtedness  of  such  muni- 
cipality prescribed  by  law.  (As  amended  Sept.  3,  1912.) 

Sec.  11.  Any  municipality  appropriating  private  property  for  a 
public  improvement  may  provide  money  therefore  in  part  by  assess- 
ments upon  benefited  property  not  in  excess  of  the  special  benefits 
conferred  upon  such  property  by  the  improvements.  Said  assessments, 
however,  upon  all  the  abutting,  adjacent,  and  other  property  in  the 
district  benefited  shall  in  no  case  be  levied  for  more  than  fifty  per 
centum  of  the  cost  of  such  appropriation.  (As  amended  Sept.  3,  1912.) 

Sec.  12.  Any  municipality  which  acquires,  constructs  or  extends 
any  public  utility  and  desires  to  raise  money  for  such  purposes  may 
issue  mortgage  bonds  therefor  beyond  the  general  limit  of  bonded  in- 
debtedness prescribed  by  law;  provided  that  such  mortgage  bonds 
issued  beyond  the  general  limit  of  bonded  indebtedness  prescribed  by 
law  shall  not  impose  any  liability  upon  such  municipality,  but  shall  be 
secured  only  upon  the  property  and  revenues  of  such  public  utility,  in- 
cluding a franchise  stating  the  terms  upon  which,  in  case  of  fore- 
closure, the  purchaser  may  operate  the  same,  which  franchise  shall  in 
no  case  extend  for  a longer  period  than  twenty  years  from  the  date  of 
the  sale  of  such  utility  and  franchise  on  foreclosure.  (As  amended 
Sept.  3,  1912.) 

Sec.  13.  Laws  may  be  passed  to  limit  the  power  of  munici- 
palities to  levy  taxes  and  incur  debts  for  local  purposes,  and  may  re- 
quire reports  from  municipalities  as  to  their  financial  condition  and 
transactions,  in  such  form  as  may  be  provided  by  law,  and  may  provide 
for  the  examination  of  the  vouchers,  books,  and  accounts  of  all  mu- 
nicipal authorities,  or  of  public  undertakings  conducted  by  such 
authorities.  (As  amended  Sept.  3,  1912.) 

Sec.  14.  All  elections  and  submissions  of  questions  provided  for 
in  this  article  shall  be  conducted  by  the  election  authorities  prescribed 
by  general  law.  The  percentage  of  electors  required  to  sign  any 
petition  provided  for  herein  shall  be  based  upon  the  total  vote  cast  at 
the  last  preceding  general  municipal  election.  (As  amended  Sept.  3, 
1912.) 


5.  Oregon.  Article  IV — Legislative  Department. 

Sec.  la.  Initiative  and  Referendum.  The  referendum  may  be 
demanded  by  the  people  against  one  or  more  items,  sections,  or  parts 
of  any  act  of  the  Legislative  assembly  in  the  same  manner  in  which 
such  power  may  be  exercised  against  a complete  act.  The  filing  of  a 
referendum  petition  against  one  or  more  items,  sections,  or  parts  of  an 


438 


act  shall  not  delay  the  remainder  of  that  act  from  becoming  operative. 
The  initiative  and  referendum  powers  reserved  to  the  people  by  this 
Constitution  are  hereby  further  reserved  to  the  legal  voters  of  every 
municipality  and  district,  as  to  all  local,  special  and  municipal  legisla- 
tion, of  every  character,  in  or  for  their  respective  municipalities  and 
districts.  The  manner  of  exercising  said  powers  shall  be  prescribed 
by  general  laws,  except  that  cities  and  towns  may  provide  for  the 
manner  of  exercising  the  initiative  and  referendum  powers  as  to  their 
municipal  legislation.  Not  more  than  ten  per  cent  of  the  legal  voters 
may  be  required  to  order  the  referendum  nor  more  than  fifteen  per 
cent  to  propose  any  measure  by  the  initiative,  in  any  city  or  town. 
(As  amended  June  4,  1906.) 


Article  XI — Corporations  and  Internal  Improvements. 

Sec.  2.  Municipalities.  Corporations  may  be  formed  under  gen- 
eral laws,  but  shall  not  be  created  by  the  Legislative  Assembly  by 
special  laws.  The  Legislative  Assembly  shall  not  enact,  amend  or 
repeal  any  charter  or  act  of  incorporation  for  any  municipality,  city  or 
town.  The  legal  voters  of  every  city  and  town  are  hereby  granted 
power  to  enact  and  amend  their  municipal  charter,  subject  to  the  Con- 
stitution and  criminal  laws  of  the  State  of  Oregon,  and  the  exclusive 
power  to  license,  regulate,  control  or  to  suppress  or  prohibit,  the  sale 
of  intoxicating  liquors  therein  is  vested  in  such  municipality;  but  such 
municipality  shall  within  its  limits  be  subject  to  the  provisions  of  the 
local  option  law  of  the  State  of  Oregon.  (As  amended  Nov.  8,  1910.) 


6.  Texas.  Article  XI — Municipal  Corporations. 

Sec.  5.  Cities  having  more  than  five  thousand  (5,000)  inhabi- 
tants may,  by  a majority  vote  of  the  qualified  voters  of  said  city,  at 
an  election  held  for  that  purpose,  adopt  or  amend  their  charters,  sub- 
ject to  such  limitations  as  may  be  prescribed  by  the  legislature,  and 
providing  that  no  charter  or  any  ordinance  passed  under  said  charter 
shall  contain  any  provision  inconsistent  with  the  constitution  of  the 
state,  or  of  the  general  laws  enacted  by  the  legislature  of  this  state ; 
said  cities  may  levy,  assess  and  collect  such  taxes  as  may  be  authorized 
by  law  or  by  their  charters;  but  no  tax  for  any  purpose  shall  ever  be 
lawful  for  any  one  year,  which  shall  exceed  two  and  one-half  per  cent 
of  the  taxable  property  of  such  city,  and  no  debt  shall  ever  be  created 
by  any  city,  unless  at  the  same  time  provision  be  made  to  assess  and 
collect  annually  a sufficient  sum  to  pay  the  interest  thereon  and  creat- 
ing a sinking  fund  of  at  least  two  per  cent  thereon ; and  provided 
further,  that  no  city  charter  shall  be  altered,  amended  or  repealed 
oftener  than  every  two  years.  (As  amended  Nov.  5,  1912.) 


7.  New  York  (Proposed  Constitution,  1915).  Article  XV. 

Section  1.  It  shall  be  the  duty  of  the  legislature  by  general  laws 
to  provide  for  the  organization  of  new  cities  in  such  manner  as  shall 


439 


secure  to  them  the  exercise  of  the  powers  granted  to  cities  in  thE 
article.  Except  as  to  cities  having  more  than  one  hundred  thousand 
population,  it  shall  be  the  duty  of  the  legislature  to  restrict  the 
powers  of  taxation  and  assessment  so  as  to  prevent  abuses  in 
taxation  and  assessments  by  any  city  or  incorporated  village. 

Sec.  2.  The  legislature  may  regulate  and  fix  the  wages  and, 
except  as  otherwise  provided  in  this  article,  the  salaries  and  may 
also  regulate  and  fix  the  hours  of  work  or  labor,  and  make  pro- 
vision for  the  protection,  welfare  and  safety  of  persons  employed  by 
the  state  or  by  any  county,  city,  town,-  village  or  other  civil  di- 
vision of  the  state,  or  by  any  contractor  or  subcontractor  performing 
work,  labor  or  services  for  the  state,  or  for  any  county,  city,  town, 
village  or  other  civil  division  thereof. 

Sec.  3.  Every  city  shall  have  exclusive  power  to  manage, 
regulate  and  control  its  property,  affairs  and  municipal  government 
subject  to  the  provisions  of  this  constitution  and  subject  further 
to  the  provisions  of  the  general  laws  of  the  state,  of  laws 
applying  to  all  the  cities  of  the  state  without  classification  or  dis- 
tinction, and  of  laws  applying  to  a county  not  wholly  included 
within  a city  establishing  or  affecting  the  relation  between  such  a 
county  and  a city  therein.  Such  power  shall  be  deemed  to  in- 
clude among  others : 

(a)  The  power  to  organize  and  manage  all  departments, 
bureaus,  or  other  divisions  of  its  municipal  government  and  to 
regulate  the  powers,  duties,  qualifications,  mode  of  selection,  num- 
ber, terms  of  office,  compensation  and  method  of  removal  of  all 
city  officers  and  employees,  including  all  police  and  health  officers 
and  employees  paid  by  the  city,  and  of  all  non-judicial  officers  and 
employees  attached  to  courts  not  of  record,  and  to  regulate  tlm 
compensation  of  all  officers  not  chosen  by  the  electors  and  of  all 
employees  of  counties  situated  wholly  within  a city  except  assistants 
and  employees  of  district  attorneys  and  except  officers  and  employees 
of  courts  of  record. 

(b)  The  power,  as  hereinafter  provided,  to  revise  or  enact 
amendments  to  its  charter  in  relation  to  its  property,  affairs  or 
municipal  government  and  to  enact  amendments  to  any  local  or 
special  law  in  relation  thereto.  A city  may  adopt  a revised  charter 
or  enact  amendments  to  its  charter  or  any  existing  special  or  local 
law  in  relation  to  any  matter  of  state  concern  the  management, 
regulation  and  control  of  which  shall  have  been  delegated  to  the 
city  by  law,  until  and  unless  the  legislature,  pursuant  to  the  pro- 
visions of  section  four  of  this  article  shall  enact  a law  inconsistent 
therewith.  The  term  “charter”  is  declared  for  the  purposes  of  this 
article  to  include  any  general  city  law  enacted  for  the  cities  of  one 
class  in  so  far  as  it  applies  to  such  city. 

The  legislative  body  of  the  city  may  enact  such  amendments,  sub- 
ject to  the  approval  of  the  mayor  and  of  the  board  of  estimate  and 
apportionment  of  the  city  if  any  there  be ; provided,  however, 
that  in  a city  in  which  any  of  the  members  of  the  board  of  estimate 
and  apportionment  are  not  elected  or  in  which  no  such  body  exists  no 


440 


such  amendment  shall  be  enacted  without  the  assent  of  two-thirds  of 
all  members  elected  to  such  legislative  body.  Every  such  enactment 
shall  embrace  only  one  subject  and  shall  expressly  declare  that.it  is 
such  an  amendment.  Every  amendment  which  changes  the  frame- 
work of  the  government  of  the  city  or  modifies  restrictions  as  to 
issuing  bonds  or  contracting  debts  shall  be  submitted  to  the  legis- 
lature in  the  year  one  thousand  nine  hundred  and  sixteen  on  or  be- 
fore the  fifteenth  day  of  March  and  in  any  year  thereafter  during 
the  first  week  of  its  next  regular  session,  and  shall  take  effect  as  law 
sixty  days  after  such  submission  unless  in  the  meantime  the  legis- 
lature shall  disapprove  the  same  by  joint  resolution.  Every  other 
such  amendment  shall  take  effect  upon  its  enactment  as  above  pro- 
vided without  such  submission  to  the  legislature. 

The  legislature  by  general  law  shall  provide  for  a public  notice 
and  opportunity  for  a public  hearing  by  the  legislative  body  of  the 
city  concerning  any  such  amendment  before  final  action  thereon  by 

it. 

At  the  general  election  in  the  year  one  thousand  nine  hundred 
and  seventeen,  and  unless  its  charter  after  one  revision  thereof  shall 
otherwise  provide,  in  every  eighth  year  thereafter  either  at  the  gen- 
eral or  at  a special  election,  every  city  shall  submit  to  the  electors 
thereof,  the  question  “shall  there  be  a commission  to  revise  the 
charter  of  the  city?”  and  may  at  the  same  time  choose  seven  com- 
missioners to  revise  the  city  charter  in  case  the  question  be 
answered  in  the  affirmative,  provided,  however,  that  in  the  city  of 
New  York  the  number  of  such  commissioners  shall  be  sixteen,  nine 
of  whom  shall  be  chosen  by  the  electors  of  the  entire  city,  two  by 
the  electors  of  the  borough  of  Manhattan,  two  by  the  electors  of 
the  borough  of  Brooklyn,  and  one  each  by  the  electors  of  the  bor- 
oughs of  The  Bronx,  Queens  and  Richmond  respectively.  Such 
revision  when  completed  shall  be  filed  in  the  office  of  the  city  clerk, 
and  not  less  than  six  weeks  after  such  filing  shall  be  submitted  to 
the  electors  of  the  city  at  the  next  ensuing  general  election  or  at  a 
special  election  to  be  called  for  that  purpose.  If  such  revision  be 
approved  by  the  affirmative  vote  of  the  majority  of  the  electors 
voting  thereon  such  revision  shall  be  submitted  to  the  legislature 
during  the  first  week  of  its  session  in  January  of  the  year  following 
the  approval  thereof,  and  if  not  disapproved  by  the  legislature  by 
joint  resolution  prior  to  the  first  day  of  July  thereafter  shall  there- 
upon take  effect  as  law  except  as  therein  otherwise  specified.  The 
legislature  shall  by  general  law  provide  for  carrying  into  effect  the 
provisions  of  this  paragraph. 

Every  charter  revision  and  every  amendment  of  any  provision 
of  law,  enacted  pursuant  to  this  section,  shall  be  deposited  with  the 
secretary  of  state  and  published  as  the  legislature  may  direct. 

Sec.  4.  All  cities  are  classified  according  to  the  latest  fed- 
eral or  state  census  or  enumeration,  as  from  time  to  time  made,  as 
follows:  The  first  class  includes  all  cities  having  a population  of 
one  hundred  and  seventy-five  thousand  or  more ; the  second  class, 


441 


all  cities  having  a population  of  fifty  thousand  and  less  than  one 
hundred  and  seventy-five  thousand ; the  third  class,  all  other  cities. 

The  legislature  may  delegate  to  cities  for  exercise  within  their 
respective  local  jurisdictions  such  of  its  powers  of  legislation  as  to 
matters  of  state  concern  as  it  may  from  time  to  time  deem  exped- 
ient. 

The  legislature  shall  pass  no  law  relating  to  the  property,  af- 
fairs or  municipal  government  of  any  city  excepting  such  as  is  ap- 
plicable to  all  the  cities  of  the  state  without  classification  or  dis- 
tinction. 

The  provisions  of  this  article  shall  not  be  deemed  to  restrict 
the  powers  of  the  legislature  to  pass  laws  regulating  matters  of 
state  concern  as  distinguished  from  matters  relating  to  the  property, 
affairs  or  municipal  government  of  cities. 

Laws  affecting  cities  in  relation  to  boundaries,  water  supply, 
sewerage  and  public  improvements,  involving  the  use  of  territory 
outside  the  boundaries  of  cities,  and  in  relation  to  the  government 
of  cities  in  matters  of  state  concern  and  applying  to  less  than  all 
the  cities  of  the  state  without  classification  or  distinction  are  de- 
fined for  the  purposes  of  this  article  as  special  city  laws.  Special 
city  laws  shall  not  be  passed  except  in  conformity  with  the  provi- 
sions of  this  section.  After  any  bill  for  a special  city  law  has  been 
passed  by  both  branches  of  the  legislature,  the  house  in  which  it 
originated  shall  immediately  transmit  a certified  copy  thereof  to 
the  mayor  of  each  city  to  which  it  relates,  and  within  fifteen  days 
thereafter  the  mayor  shall  return  such  bill  to  the  clerk  of  the  house 
from  which  it  was  sent,  who,  if  the  session  of  the  legislature  at 
which  such  bill  was  passed  has  terminated,  shall  immediately  trans- 
mit the  same  to  the  governor  with  the  mayor’s  certificate  thereon, 
stating  whether  the  city  has  or  has  not  accepted  the  same.  In 
every  city  of  the  first  class,  the  mayor,  and  in  every  other  city,  the 
mayor  and  the  legislative  body  thereof  concurrently,  shall  act  for 
such  city  as  to  such  bill ; but  the  legislature  may  provide  for  the 
concurrence  of  the  legislative  body  in  cities  of  the  first  class.  The 
legislature  shall  provide  for  a public  notice  and  opportunity  for  a 
public  hearing  concerning  any  such  bill  in  every  city  to  which  it 
relates,  before  action  thereon.  Such  a bill,  if  it  relates  to  more 
than  one  city,  shall  be  transmitted  to  the  mayor  of  each  city  to 
which  it  relates,  and  shall  not  be  deemed  accepted  unless  accepted 
as  herein  provided,  by  every  such  city.  Whenever  any  such  bill  is 
accepted  as  herein  provided,  it  shall  be  subject  as  are  other  bills,  to 
the  action  of  the  governor.  Whenever,  during  the  session  at  which 
it  was  passed  any  such  bill  is  returned  without  the  acceptance  of 
the  city  or  cities  to  which  it  relates,  or  within  such  fifteen  days  is 
not  returned,  it  may  nevertheless  again  be  passed  by  both  branches 
of  the  legislature,  and  it  shall  then  be  subject  as  are  other  bills,  to 
the  action  of  the  governor.  In  every  special  city  law  which  has 
been  accepted  by  the  city  or  cities  to  which  it  relates,  the  title  shall 
be  followed  by  the  words  “accepted  by  the  city”  or  “cities”  as  the 
case  may  be;  in  every  such  law  which  is  passed  without  such  ac- 


442 


ceptance,  by  the  words  “passed  without  the  acceptance  of  the  city’’ 
or  “cities”  as  the  case  may  be. 

Sec.  5.  All  elections  of  city  officers,  including  supervisors  and 
judicial  officers  of  inferior  loca^  courts,  elected  in  any  city  or  part  of 
a city,  and  of  county  officers  elected  in  the  counties  of  New  York, 
Kings,  Queens,  Richmond  and  Bronx,  and  in  all  counties  whose 
boundaries  are  the  same  as  those  of  a city,  except  to  fill  vacancies, 
shall  be  held  on  the  Tuesday  succeeding  the  first  Monday  in  No- 
vember in  an  odd-numbered  year,  and  the  term  of  every  such  of- 
ficer shall  expire  at  the  end  of  an  odd  numbered  year.  The  terms 
of  office  of  all  such  officers  elected  before  the  first  day  of  January, 
one  thousand  nine  hundred  and  seventeen,  whose  successors  have 
not  then  been  elected,  which  under  existing  laws  would  expire  with 
an  even-numbered  year,  or  in  an  odd-numbered  year  and  before  the 
end  thereof,  are  extended  to  and  including  the  last  day  of  Decem- 
ber next  following  the  time  when  such  terms  would  otherwise  ex- 
pire; the  terms  of  office  of  all  such  officers,  which  under  existing 
laws  would  expire  in  an  even-numbered  year,  and  before  the  end 
thereof,  are  abridged  so  as  to  expire  at  the  end  of  the  preceding 
year.  This  section  shall  not  apply  to  elections  of  any  judicial  of- 
ficers, except  judges  and  justices  of  inferior  local  courts. 


8.  National  Municipal  League  : 

Home  Rule  Constitutional  Provisions,  recommended  by  the 
Committee  on  Municipal  Program  of  the  National  Municipal 
League. 

Section  1.  Incorporation  and  Organization.  Provision  shall 
be  made  by  a general  law  for  the  incorporation  of  cities  and  vil- 
lages ; and  by  a general  law  for  the  organization  and  government 
of  cities  and  villages  which  do  not  adopt  laws  or  charters  in  accord- 
ance with  the  provisions  of  sections  2 and  3 of  this  article. 

Sec.  2.  Optional  Laws.  Laws  may  be  enacted  affecting  the 
organization  and  government  of  cities  and  villages,  which  shall  be- 
come effective  in  any  city  or  village  only  when  submitted  to  the 
electors  thereof  and  approved  by  a majority  of  those  voting  thereon. 

Sec.  3.  City  Charters.  Any  city  may  frame  and  adopt  a char- 
ter for  its  own  government  in  the  following  manner : The  legisla- 
tive authority  of  the  city  may  by  a two-thirds  vote  of  its  members, 
and,  upon  the  petition  of  ten  per  cent  of  the  qualified  electors,  shall 
forthwith  provide  by  ordinance  for  the  submission  to  the  electors 
of  the  question : “Shall  a commission  be  chosen  to  frame  a char- 

ter?” The  ordinance  shall  require  that  the  question  be  submitted 
to  the  electors  at  the  next  regular  municipal  election,  if  one  shall 
occur  not  less  than  sixty  nor  more  than  one  hundred  and  twenty 
days  after  its  passage,  otherwise,  at  a special  election  to  be  called 
and  held  within  the  time  aforesaid ; the  ballot  containing  such  ques- 
tion shall  also  contain  the  names  of  candidates  for  members  of  the 
proposed  commission,  but  without  party  designation. 


443 


Such  candidates  shall  be  nominated  by  petition  which  shall  be 
signed  by  not  less  than  two  per  cent  of  the  qualified  electors,  and 
be  filed  with  the  election  authorities  at  least  thirty  days  before  such 
election ; provided,  that  in  no  case  shall  the  signatures  of  more  than 
one  thousand  (1,000)  qualified  electors  be  required  for  the  nomina- 
tion of  any  candidate.  If  a majority  of  the  electors  voting  on  the 
question  of  choosing  a commission  shall  vote  in  the  affirmative, 
then  the  fifteen  candidates  receiving  the  highest  number  of  votes 
(or  if  the  legislative  authority  of  the  state  provides  by  general  law 
for  the  election  of  such  commissioners  by  means  of  a preferential 
ballot  or  proportional  representation  or  both,  then  the  fifteen  chosen 
in  the  manner  required  by  such  general  law)  shall  constitute  the 
charter  commission  and  shall  proceed  to  frame  a charter. 

Any  charter  so  framed  shall  be  submitted  to  the  qualified 
electors  of  the  city  at  an  election  to  be  held  at  a time  to  be  deter- 
mined by  the  charter  commission,  which  shall  be  at  least  thirty  days 
subsequent  to  its  completion  and  distribution  among  the  electors 
and  not  more  than  one  year  from  the  date  of  the  election  of  the 
charter  commission.  Alternative  provisions  may  also  be  submitted 
to  be  voted  upon  separately.  The  commission  shall  make  provision 
for  the  distribution  of  copies  of  the' proposed  charter  and  of  any 
alternative  provisions  to  the  qualified  electors  of  the  city  not  less 
than  thirty  days  before  the  election  at  which  it  is  voted  upon.  Such 
proposed  charter  and  such  alternative  provisions  as  are  approved  by 
a majority  of  the  electors  voting  thereon  shall  become  the  organic 
law  of  such  city  at  such  time  as  may  be  fixed  therein,  and  shall  super- 
sede any  existing  charter  and  all  laws  affecting  the  organization 
and  government  of  such  city  which  are  in  conflict  therewith.  Within 
thirty  days  after  its  approval  the  election  authorities  shall  certify 
a copy  of  such  charter  to  the  secretary  of  state,  who  shall  file  the 
same  as  a public  record  in  his  office,  and  the  same  shall  be  pub- 
lished as  an  appendix  to  the  session  laws  enacted  by  the  legislature. 

Sec.  4.  Amendments.  Amendments  to  any  such  charter  may 
be  framed  and  submitted  by  a charter  commission  in  the  same  man- 
ner as  provided  in  section  3 for  framing  and  adopting  a charter. 
Amendments  may  also  be  proposed  by  two-thirds  of  the  legislative 
authority  of  the  city,  or  by  petition  of  ten  per  cent  of  the  electors ; 
and  any  such  amendment,  after  due  public  hearing  before  such  leg- 
islative authority,  shall  be  submitted  at  a regular  or  special  election 
as  is  provided  for  the  submission  of  the  question  of  choosing  a 
charter  commission.  Copies  of  all  proposed  amendments  shall  be 
sent  to  the  qualified  electors.  Any  such  amendment  approved  by 
a majority  of  the  electors  voting  thereon  shall  become  a part  of  the 
charter  of  the  city  at  the  time  fixed  in  the  amendment  and  shall  be 
certified  to  and  filed  and  published  by  the  secretary  of  state  as  in 
the  case  of  a charter. 

Sec.  5.  Powers.  Each  city  shall  have  and  is  hereby  granted 
the  authority  to  exercise  all  powers  relating  to  municipal  affairs : 
and  no  enumeration  of  powers  in  this  constitution  or  any  law  shall 
be  deemed  to  limit  or  restrict  the  general  grant  of  authority  hereby 


444 


conferred ; but  this  grant  of  authority  shall  not  be  deemed  to  limit 
or  restrict  the  power  of  the  legislature,  in  matters  relating  to  state 
affairs,  to  enact  general  laws  applicable  alike  to  all  cities  of  the 
state. 

The  following  shall  be  deemed  to  be  a part  of  the  powers  con- 
ferred upon  cities  by  this  section : 

(a)  To  levy,  assess  and  collect  taxes  and  to  borrow  money,* 
within  the  limits  prescribed  by  general  law ; and  to  levy  and  collect 
special  assessments  for  benefits  conferred ; 

(b)  To  furnish  all  local  public  services;  to  purchase,  hire,  con- 
struct, own,  maintain,  and  operate  or  lease  local  public  utilities ; to 
acquire,  by  condemnation  or  otherwise,  within  or  without  the  cor- 
porate limits,  property  necessary  for  any  such  purposes,  subject  to 
restrictions  imposed  by  general  law  for  the  protection  of  other  com- 
munities ; and  to  grant  local  public  utility  franchises  and  regulate 
the  exercise  thereof ; 

(c)  To  make  local  public  improvements  and  to  acquire,  by 
condemnation  or  otherwise,  property  within  its  corporate  limits 
necessary  for  such  improvements ; and  also  to  acquire  an  excess 
over  that  needed  for  any  such  improvement,  and  to  sell  or  lease  such 
excess  property  with  restrictions,  in  order  to  protect  and  preserve, 
the  improvement; 

(d)  To  issue  and  sell  bonds  on  the  security  of  any  such  excess 
property,  or  of  any  public  utility  owned  by  the  city,  or  of  the 
revenues  thereof,  or  of  both,  including  in  the  case  of  a public  utility, 
if  deemed  desirable  by  the  city,  a franchise  stating  the  terms  upon 
which,  in  case  of  foreclosure,  the  purchaser  may  operate  such  util- 
ity; 

(e)  To  organize  and  administer  public  schools  and  libraries, 
subject  to  the  general  laws  establishing  a standard  of  education  for 
the  state; 

(f)  To  adopt  and  enforce  within  its  limits  local  police,  sani- 
tary and  other  similar  regulations  not  in  conflict  with  general  laws. 

Sec.  6.  Reports.  General  laws  may  be  passed  requiring  re- 
ports from  cities  as  to  their  transactions  and  financial  condition, 
and  providing  for  the  examination  of  the  vouchers  by  state  officials, 
books  and  accounts  of  all  municipal  authorities,  or  of  public  under- 
takings conducted  by  such  authorities. 

Sec.  7.  Elections.  All  elections  and  submissions  of  questions 
provided  for  in  this  article  or  in  any  charter  or  law  adopted  in  ac- 
cordance herewith  shall  be  conducted  by  the  election  authorities 
provided  by  general  law. 

Sec.  8.  Consolidation  of  City  and  County.  Any  city  of  100,- 
000  population  or  over,  upon  vote  of  the  electors  taken  in  the  man- 
ner provided  by  general  law,  may  be  organized  as  a distinct  county ; 
and  any  such  city  and  county  may  in  its  municipal  charter  provide 
for  the  consolidation  of  the  county,  city  and  all  other  local  authori- 
ites  in  one  system  of  municipal  government,  in  which  provision 
shall  be  made  for  the  exercise  of  all  powers  and  duties  vested  in 
the  several  local  authorities.  Any  such  consolidated  city  and 


445 


county  government  shall  also  have  the  same  powers  to  levy  taxes 
and  to  borrow  money  as  were  vested  in  the  several  local  authorities 
before  consolidation. 


9.  Utah  Senate  Joint  Resolution  No.  6 (1919). 

A joint  resolution  proposing  an  amendment  to  Section  5 of 
Article  11  of  the  Constitution  of  the  State  of  Utah,  relating  to  mu- 
nicipal corporations. 

Be  it  enacted  by  the  Legislature  of  the  State  of  Utah,  two-thirds  vote 
of  all  the  members  elected  in  the  two  houses  concurring  therein : 

Section  1.  That  it  is  proposed  to  amend  Section  5 of  Article 
XI  of  the  Constitution  of  the  State  of  Utah,  so  that  the  same  will 
read  as  follows : 

Sec.  5.  Corporations  for  municipal  purposes  shall  not  be 
created  by  special  laws.  The  Legislature  by  general  laws  shall 
provide  for  the  incorporation,  organization  and  classification  of 
cities  and  towns  in  proportion  to  population,  which  laws  may  be 
altered,  amended  or  repealed. 

Any  city  may  frame  and  adopt  a charter  for  its  own  govern- 
ment in  the  following  manner: 

The  legislative  authority  of  the  city  may,  by  two-thirds  vote 
of  its  members,  and  upon  petition  of  qualified  electors  to  the  num- 
ber of  10  per  cent  of  all  votes  cast  at  the  next  preceding  election  for 
the  office  of  the  mayor,  shall  forthwith  provide  by  ordinance  for  the 
submission  to  the  electors  of  the  question  : “Shall  a Commission  be 
chosen  to  frame  a charter  ?”  The  ordinance  shall  require  that  the 
question  be  submitted  to  the  electors  at  the  next  regular  municipal 
election.  The  ballot  containing  such  question  shall  also  contain 
the  names  of  candidates  for  members  of  the  proposed  Commission, 
but  without  party  designation.  Such  candidates  shall  be  nominated 
in  the  same  manner  as  required  by  law  for  nomination  of  city  offi- 
cers. If  a majority  of  the  electors  voting  on  the  question  of  choosing 
a Commission  shall  vote  in  the  affirmative  then  the  fifteen  candi- 
dates receiving  a majority  of  the  votes  cast  at  such  election,  shall 
constitute  the  charter  Commission,  and  shall  proceed  to  frame  a 
charter. 

Any  charter  so  framed  shall  be  submitted  to  the  qualified  elec- 
tors of  the  city  at  an  election  to  be  held  at  a time  to  be  determined 
by  the  charter  Commission,  which  shall  be  not  less  than  thirty  days 
subsequent  to  its  completion  and  distribution  among  the  electors 
and  not  more  than  one  year  from  such  date.  Alternative  provisions 
may  also  be  submitted  to  be  voted  upon  separately.  The  Commis- 
ison  shall  make  provisions  for  the  distribution  of  copies  of  the  pro- 
posed charter  and  of  any  alternative  provisions  to  the  qualified 
electors  of  the  city,  not  less  than  sixty  days  before  the  election  at 
which  it  is  voted  upon.  Such  proposed  charter  and  such  alterna- 
tive provisions  as  are  approved  by  a majority  of  the  electors  voting 


446 


thereon,  shall  become  an  organic  law  of  such  city  at  such  time  as 
may  be  fixed  therein,  and  shall  supersede  any  existing  charter  and 
all  laws  affecting  the  organization  and  government  of  such  city 
which  are  now  in  conflict  therewith.  Within  thirty  days  after  its 
approval  a copy  of  such  charter  as  adopted,  certified  by  the  mayor 
and  city  recorder  and  authenticated  by  the  seal  of  such  city,  shall  be 
made  in  duplicate  and  deposited,  one  in  the  office  of  the  Secretary 
of  State  and  the  other  in  the  office  of  the  City  Recorder,  and  there- 
after all  courts  shall  take  judicial  notice  of  such  charter. 

Amendments  to  any  such  charter  may  be  framed  and  submitted 
by  the  charter  Commission  in  the  same  manner  as  provided  for 
making  of  charters,  or  may  be  proposed  by  the  legislative  authority 
of  the  city  upon  a two-thirds  vote  thereof,  or  by  petition  of  quali- 
fied electors  to  a number  equal  to  one-tenth  of  the  total  vote  cast  for 
mayor  on  the  next  preceding  election,  and  any  such  amendment 
may  be  submitted  at  the  next  regular  election,  and  having  been  ap- 
proved by  the  majority  of  the  electors  voting  thereon,  shall  become 
a part  of  the  charter  at  the  time  fixed  in  such  amendment  and  shall 
be  verified  and  filed  as  provided  in  case  of  charters. 

Each  city  forming  its  charter  under  this  Section  shall  have, 
and  is  hereby  granted,  the  authority  to  exercise  all  powers  relating 
to  municipal  affairs,  and  to  adopt  and  enforce  within  its  limits, 
local  police,  sanitary  and  similar  regulation  not  in  conflict  with  the 
general  law,  and  no  enumeration  of  powers  in  this  constitution  or 
any  law  shall  be  deemed  to  limit  or  restrict  the  general  grant  of 
authority  hereby  conferred ; but  this  grant  of  authority  shall  not 
include  the  power  to  regulate  the  service  or  charges  of  public  utili- 
ties so  long  as  such  regulation  is  provided  for  by  general  law,  nor 
be  deemed  to  limit  or  restrict  the  power  of  the  Legislature  in  mat- 
ters of  public  or  general  interest,  nor  those  relating  to  State  af- 
fairs. 

The  pow.er  to  be  conferred  upon  the  cities  by  this  Section  shall 
include  the  following: 

(a)  To  levy,  assess  and  collect  taxes  and  borrow  money,  within 
the  limits  prescribed  by  general  law,  and  to  levy  and  collect  special 
assessments  for  benefits  conferred. 

(b)  To  furnish  all  local  public  services;  to  purchase,  hire,  con- 
struct, own,  maintain  and  operate,  or  lease,  public  utilities,  local  in 
extent  and  use ; to  acquire  by  condemnation  or  otherwise,  within  or 
without  the  corporate  limits,  property  necessary  for  any  such  pur- 
poses, subject  to  restrictions  imposed  by  general  law  for  the  pro- 
tection of  other  communities ; and  to  grant  local  public  utility  fran- 
chises and  regulate  the  exercise  thereof  subject  to  the  continuing 
power  of  regulation  of  public  utilities,  their  rates  and  service,  by 
the  State,  as  is  now  or  may  hereafter  be,  provided  by  general  law. 

(c)  To  make  local  public  improvements  and  to  acquire  by  con- 
demnation, or  otherwise,  property  within  its  corporate  limits  neces- 
sary for  such  improvements ; and  also  to  acquire  an  excess  over  that 
needed  for  any  such  improvement  aud  to  sell  or  lease  such  excess 


447 


property  with  restrictions,  in  order  to  protect  and  preserve  the  im- 
provement. 

(d)  To  issue  and  sell  bonds  on  the  security  of  any  such  excess 
property,  or  of  any  public  utility  owned  by  the  city,  or  of  the  rev- 
enues thereof,  or  both,  including,  in  the  case  of  a public  utility,  a 
franchise  stating  the  terms  upon  which,  in  case  of  foreclosure,  the 
purchaser  may  operate  such  utility. 

Sec.  2.  The  Secretary  of  State  is  hereby  directed  to  submit  the 
proposed  amendment  to  the  electors  of  the  State  at  the.  next  gen- 
eral election  in  the  manner  provided  by  law. 

Sec.  3.  If  adopted  by  the  electors  of  this  State,  this  amend- 
ment shall  take  effect  on  January  1st,  1921. 

Approved  March  18,  1919. 


10.  Wisconsin — Joint  Resolution  53  (1919). 

Resolved  by  the  Assembly,  the  Senate  concurring,  that  there  be 
added  to  article  XI  of  the  constitution  a new  section  to  read  : 
(Article  XI)  Section  3b.  Any  city,  in  addition  to  the  indebtedness 
of  five  per  centum  authorized  by  section  3 of  this  article,  may  incur 
an  indebtedness  not  exceeding  another  five  per  centum  on  the  value 
of  the  taxable  property  in  such  city  for  the  purpose  of  acquiring  or 
constructing  street  railway  properties,  or  properties  for  the  produc- 
iton,  transmission,  delivery  or  furnishing  of  light,  heat,  water  or 
power  to  the  public. 

Joint  Resolution  70  (1919). 

Resolved  by  the  Senate,  the  assembly  concurring,  That  section  3 
of  article  XI  of  the  constitution  be  amended  to  read:  (Article  XI) 
Section  3.  Cities  and  villages  organized  pursuant  to  state  law  * * * 
are  hereby  empowered  to  determine  their  local  affairs  and  government 
subject  only  to  this  constitution  and  to  such  enactments  of  the  legis- 
lature of  state-wide  concern  as  shall  with  uniformity  affect  every  city 
or  every  village.  The  method  of  such  determination  shall  be  pre- 
scribed by  the  legislature.  * * * No  county,  city,  town,  village, 

school  district,  or  other  municipal  corporation  shall  * * * become 

indebted  * * * to  anv  amount  including  existing  indebtedness,  in 

the  aggregate  exceeding  five  per  centum  on  the  value  of  the  taxable 
property  therein,  to  be  ascertained  by  the  last  assessment  for  state  and 
countv  taxes  previous  to  the  incurring  of  such  indebtedness,  except, 
that  for  the  purpose  of  acquiring  public  service  properties  an  addi- 
tional indebtedness  mav  be  incurred  not  exceeding  another  five  per 
centum.  Any  county,  city,  town,  village,  school  district,  or  other  mu- 
nicipal corporation  incurring  any  indebtedness  as  aforesaid,  shall,  be- 
fore or  at  the  time  of  doing  so,  provide  for  the  collection  of  a direct 
annual  tax  sufficient  to  pav  the  interest  on  such  debt  as  it  falls  due, 
and  also  to  pay  and  discharge  the  principal  thereof  within  twenty 
vears  from  the  time  of  contracting  the  same;  except  that  when  such 
indebtedness  is  incurred  in  the  acquisition  of  lands  by  any  city  * * * 


448 


or  by  any  county  * * * having  a population  of  one  hundred  fifty 

thousand  or  over,  for  public,  municipal  purposes,  or  for  the  permanent 
improvement  thereof,  the  city  or  county  incurring  the  same  shall, 
before  or  at  the  time  of  so  doing,  provide  for  the  collection  of  a 
direct  annual  tax,  sufficient  to  pay  the  interest  on  such  debt  as  it  falls 
due,  and  also  to  pay  and  discharge  the  principal  thereof  within  a period 
not  exceeding  fifty  years  from  the  time  of  contracting  the  same. 


CONSTITUTIONAL  CONVENTION 


BULLETIN  No.  7 


Eminent  Domain  and  Excess 
Condemnation 


Compiled  and  Published  by  the 

LEGISLATIVE  REFERENCE  BUREAU 
Springfield,  Illinois 


[Printed  by  authority  df  the  State  of  Illinois.] 


LEGISLATIVE  REFERENCE  BUREAU. 


Governor  Frank  O.  Lowden,  Chairman. 
Senator  Edward  C.  Curtis,  Grant  Park. 
Senator  Richard  J.  Barr,  Joliet. 
Representative  Edward  J.  Smejkal,  Chicago. 
Representative  William  P.  Holaday,  Danville. 


E.  J.  Verlie,  Secretary. 

W.  F.  Dodd,  in  charge  collection  of  data  for 
constitutional  convention. 


TABLE  OF  CONTENTS. 


PAGE. 

I.  Summary  455 

II.  Constitutional  provisions  relating  to  eminent  domain  457 

Text  of  Constitutional  provisions 457 

Changes  introduced  by  constitution  of  1870 458 

III.  Construction  of  the  eminent  domain  clauses 461 

What  constitutes  a public  use 461 

Condemnation  of  property  already  devoted  to  public  use.  462 

Power  to  condemn  fee  in  land 463 

Taking  and  damaging  of  property 464 

Measure  of  compensation 467 

Medium  and  time  of  payment  of  compensation 470 

Province  of  the  courts,  the  legislature  and  the  condemning 

authority  471 

The  guaranty  of  jury  trial 472 

Condemnation  of  land  for  roads  for  public  and  private  use  474 

Condemnation  of  land  for  drainage  purposes 475 

Corporate  franchises  and  property 476 

IV.  Extension  of  the  power  of  eminent  domain 478 

Types  of  constitutional  provisions  in  general 478 

Constitutional  provisions  extending  state  functions 478 

Constitutional  provisions  expressly  extending  power  of 

eminent  domain 482 

Excess  condemnation — general  statement 482 

Constitutionality  of  statutes  authorizing  excess  condemna- 
tion   483 

Scope  of  the  police  power 485 

List  of  constitutional  provisions  authorizing  excess  con- 
demnation   487 

V.  Excess  condemnation 488 

Lot  remnants  488 

Protection  of  public  improvements 491 

Recoupment  494 

Analysis  of  constitutional  provisions  authorizing  excess 
condemnation  495 


FAGE. 

VI.  Conclusion 499 

Changes  introduced  by  the  constitution  of  1870 499 

Construction  placed  upon  other  features  of  the  eminent 

domain  clause 500 

Extension  of  the  power  of  eminent  domain 503 

Excess  condemnation 503 

Appendix  No.  1.  References 506 

Appendix  No.  2.  Illinois  eminent  domain  provisions 507 

Appendix  No.  3.  Constitutional  amendments  extending 

power  of  eminent  domain 508 

1.  Massachusetts,  1911,  1915,  1918 508 

2.  New  York,  1913 508 

3.  Rhode  Island,  1916 509 

4.  Ohio,  1912 509 

5.  Wisconsin,  1912 509 

Appendix  No.  4.  Proposed  amendments  rejected  by  people.  511 

1.  New  Jersey,  1915 511 

2.  California,  1913,  1915,  1918 511 

3.  New  York,  1911 512 

4.  Wisconsin,  1914 512 

Appendix  No.  5.  Amendments  proposed  in,  but  not  sub- 
mitted by,  legislatures  513 

1.  Massachusetts,  1914 513 

2.  Pennsylvania,  1915 513 


I.  SUMMARY. 


The  purpose  of  this  pamphlet  is : 

(1)  To  present  a summary  of  the  constitutional  aspects  of  the  law  of 
eminent  domain  in  Illinois. 

(2)  To  indicate  the  changes  which  were  introduced  in  the  constitution 
of  1870. 

(3)  To  compare  the  law  of  eminent  domain  in  Illinois  with  the  law  in 
other  states. 

(4)  To  indicate  the  questions  which  have  arisen  out  of  existing  con- 
stitutional provisions  and  which  are  likely  to  come  before  the 
convention. 

(5)  To  discuss  recent  constitutional  changes  in  the  law  of  eminent 
domain  which  have  been  adopted  in  other  states. 

There  are,  in  general,  two  types  of  questions  likely  to  come  before 
the  Convention  : (1)  those  which  have  arisen  out  of  existing  constitu- 

tional provisions,  (2)  those  which  involve  an  extension  of  the  power 
of  eminent  domain. 

In  the  first  group  the  following  questions  may  arise : The  ques- 

tion of  the  advisability  of  amending  the  general  eminent  domain  clause, 

(1)  So  that  all  governmental  agencies  which  possess  the  power  of 
eminent  domain  may  be  permitted  to  set  off  benefits  to  the  portion 
of  land  not  taken  for  the  improvement  in  diminution  of  the  value 
of  the  part  of  the  tract  which  was  taken. 

(2)  So  that  the  General  Assembly  will  possess  the  power  of  author- 
izing the  condemnation  of  the  rights  of  private  property  owners 
acquired  under  restrictions  as  to  use  imposed  upon  property  dedi- 
cated to  public  uses. 

(3)  By  eliminating  the  constitutional  guaranty  of  jury  trial  on  issues 
of  compensation. 

(4)  By  eliminating  the  constitutional  provision  which  prevents  the 
General  Assembly  from  authorizing  railroad  companies  to  con- 
demn the  fee  in  land  taken  for  railroad  tracks. 

(5)  So  that  in  all  cases  it  will  be  certain  that  the  General  Assembly 
may  authorize  the  taking  of  a fee. 

In  the  second  group  of  constitutional  questions  the  following  may 
arise : 

The  question  of  the  advisability  of  authorizing : 

(1)  The  condemnation  of  land  for  the  conservation  of  all  natural 
resources. 

(2)  The  condemnation  and  leasing  of  public  utilities  by  municipalities. 

(3)  The  condemnation  of  land  for  purposes  of  reclamation. 

(4)  The  condemnation  of  land  for  the  purpose  of  abating  slum  areas. 

(5)  The  condemnation  of  land  for  the  purpose  of  relieving  congestion 
and  in  furtherance  of  housing  projects. 


45  G 


(6)  The  use  of  excess  condemnation  for  the  purpose  of:  (a)  facili- 
tating the  union  of  lot  remnants  left  by  street  openings  with 
adjoining  property  so  as  to  form  suitable  building  sites;  (b)  pro- 
tecting an  improvement  by  taking  and  selling  land,  bordering  on 
an  improvement,  under  restrictions  as  to  the  type,  use  and  loca- 
tion of  buildings;  (c)  recouping  the  cost  of  an  improvement  by 
taking  and  selling  land  bordering  on  an  improvement  after  it  has 
increased  in  value. 

(7)  Closely  related  to  the  question  of  authorizing  excess  condemna- 
tion for  the  purpose  of  protecting  an  improvement  is  the  question 
of  the  advisability  of  authorizing  municipalities  to  enact  zoning 
ordinances  and  ordinances  prohibiting  the  erection  of  billboards 
in  certain  districts. 


457 


II.  CONSTITUTIONAL  PROVISIONS  RELATING  TO 
EMINENT  DOMAIN. 


Text  of  constitutional  provisions.  The  text  of  the  eminent  do- 
main clause  under  the  constitution  of  1818  was  as  follows:  “Nor 

shall  any  man’s  property  be  taken  or  applied  to  public  use  without 
the  consent  of  his  representatives  in  the  general  assembly,  nor  without 
just  compensation  being  made  to  him.” 

This  language  was  continued  without  change  in  the  constitution 
of  1848.  The  clause  underwent  important  changes  in  the  constitution 
of  1870.  The  general  clause  now  provides:  “Private  property  shall 

not  be  taken  or  damaged  for  public  use  without  just  compensation. 
Such  compensation,  when  not  made  by  the  state,  shall  be  ascertained 
by  a jury,  as  shall  be  prescribed  by  law.  The  fee  of  land  taken  for 
railroad  tracks,  without  consent  of  the  owners  thereof,  shall  remain 
in  such  owners,  subject  to  the  use  for  which  it  is  taken.”1 

Separate  sections  were  inserted  which  deal  with  the  right  to  con- 
demn land  for  roads  for  private  and  public  use,  for  drainage  purposes 
and  with  the  condemnation  of  property  and  franchises  of  corporations : 
“The  general  assembly  may  provide  for  establishing  and  opening 
roads  and  cartways,  connected  with  a public  road,  for  private  and 
public  use.”2  “The  general  assembly  may  pass  laws  permitting 
the  owners  or  occupants  of  lands  to  construct  drains  and  ditches  for 
agricultural  and  sanitary  purposes  across  the  lands  of  others.”3  As 
amended  in  1878  the  section  last  quoted  reads : “The  general  as- 

sembly may  pass  laws  permitting  the  owners  of  lands  to  construct 
drains,  ditches  and  levees  for  agricultural,  sanitary  or  mining  pur- 
poses, across  the  lands  of  others,  and  provide  for  the  organization  of 
drainage  districts,  and  vest  the  corporate  authorities  thereof  with 
power  to  construct  and  maintain  levees,  drains  and  ditches  and  to 
keep  in  repair  all  drains,  ditches  and  levees  heretofore  constructed 
under  the  laws  of  this  state,  by  special  assessments  upon  the  property 
benefited  thereby.”4 

The  provision  relating  to  the  condemnation  of  corporate  fran- 
chises reads : “The  exercise  of  power  and  the  right  of  eminent  do- 

main shall  never  be  so  construed  or  abridged  as  to  prevent  the  taking, 
by  the  General  Assembly,  of  the  property  and  franchises  of  incor- 
porated companies  already  organized,  and  subjecting  them  to  the 
public  necessity  the  same  as  of  individuals.  The  right  of  trial  by  jury 
shall  be  held  inviolate  in  all  trials  of  claims  for  compensation,  when, 

'Art.  II.  Sec.  13. 

2 Art.  IV.  Sec.  30. 

‘ 3 Art.  IV.  Sec.  31. 

4 Art.  IV,  Sec.  31. 


458 


in  the  exercise  of  the  said  right  of  eminent  domain,  any  incorporated 
company  shall  be  interested  either  for  or  against  the  exercise  of  said 
right.”5 


Changes  introduced  by  Constitution  of  1870.  It  thus  appears 

that  the  constitutional  convention  of  1869-70  introduced  several  im- 
portant changes  in  the  law  of  eminent  domain,  as  it  existed  under  the 
constitutions  of  1818  and  1848.  A short  statement  here  follows  con- 
cerning the  effect,  in  general,  of  these  new  provisions. 

(1)  A constitutional  right  to  compensation  was  given  in  cases 
where  property  has  been  damaged.  Before  1870  the  right  to  com- 
pensation was  confined  to  cases  of  actual  takings.  A taking  was  held 
to  mean  a taking  of  the  iee,  or  the  taking  of  an  easement  or  the  im- 
position of  an  additional  servitude  upon  land  an  easement  in  which 
previously  had  been  acquired,  and  in  addition,  included  all  direct 
physical  injuries  to  property  such  as  the  overflowing  of  land.  Com- 
pensation was  not  required  to  be  paid  for  non-physical  injuries,  such 
as  resulted  from  a change  in  the  grade  of  streets  or  from  the  con- 
struction of  a railroad  upon  a street,  the  fee  of  which  was  in  the 
public.  The  introduction  of  the  damage  clause  gave  a right  to  com- 
pensation in  these  cases.  Stated  generally,  an  owner  whose  property 
has  been  damaged  under  legislative  authority  and  under  color  of  emi- 
nent domain  has,  under  the  constitution  of  1870,  a right  to  compen- 
sation to  the  same  extent  as  he  has  against  private  persons.  Illinois 
was  the  first  state  to  introduce  this  change.  This  example  has  been 
followed  in  about  half  of  the  states,  most  of  which  are  Western  states. 
This  change  in  the  law  appears  to  have  given  satisfaction,  for  there  is 
to  be  found  but  little  evidence  of  a desire  to  return  to  the  earlier  rule, 
which  is  still  in  force  in  most  of  the  Eastern  states,  under  which 
property  may  be  damaged  without  compensation. 

(2)  The  guaranty  of  the  right  to  compensation  for  damage  to 
property  has  had  an  additional  effect  in  this  state  which  was  not  a 
necessary  consequence  of  the  introduction  of  the  damage  clause.  Under 
the  constitutions  of  1818  and  1848,  in  determining  the  amount  of  com- 
pensation for  land  actually  taken,  it  was  held  that  elements  of  special 
benefit  to  that  part  of  the  claimant’s  land  which  had  not  been  taken 
could  be  set  off  against  the  value  of  the  part  taken.  Without  pointing 
out  any  specific  reason,  the  court  has  held  that  the  effect  of  the  consti- 
tution of  1870  was  to  prevent  the  set-off  of  benefits  against  the  value 
of  land  taken,  although  the  court  has  never  had  the  opportunity  of 
passing  upon  a statute  which  undertook  to  restore  the  rule  as  it  was 
under  the  earlier  constitutions.  In  takings  by  private  corporations 
this  rule  is  followed  in  the  great  majority  of  the  states,  but  in  about 
half  the  states,  either  as  the  result  of  judicial  construction  of  clauses 
similar  to  the  Illinois  provision,  or  because  of  express  constitutional 
provision,  set-off  of  benefits  to  remaining  land  against  the  value  of 
the  part  taken  is  allowed  in  takings  by  the  state  and  by  its  agencies. 


5 Art.  XI,  Sec.  14. 


459 


If  all  agencies  of  the  state  possessed  the  power  of  levying  special 
assessments,  the  rule  forbidding  set-off  would  be  of  little  consequence. 
But  in  Illinois  where  cities,  towns,  villages,  park  districts  and  drainage 
districts  are  the  only  agencies  which  may  levy  special  assessments, 
there  is  strong  argument  in  favor  of  allowing  all  governmental  agen- 
cies, such  as  counties,  school  and  road  districts  and  the  Department  of 
Public  Works  and  Buildings,  the  right  to  set  off  benefits  against  the 
value  of  the  land  taken. 

(3)  The  guaranty  of  jury  trial  to  determine  the  amount  of  com- 
pensation came  into  the  constitution  of  1870.  Under  the  first  two 
constitutions,  the  General  Assembly  had  power  to  and  did  provide 
other  means  for  the  ascertainment  of  compensation,  for  the  general 
constitutional  guaranty  of  jury  trial  was  never  construed  to  apply 
to  eminent  domain  proceedings.  The  provision  relating  to  jury  trial 
as  to  compensation  is  found  only  in  about  one-third  of  the  states,  and 
in  some  of  these  only  in  cases  of  appeal  from  a finding  of  some  other 
body.  In  about  half  of  these  states  the  provision  does  not  apply  to 
takings  by  municipal  corporations.  The  provision  has  been  the  subject 
of  some  criticism  in  other  states. 

The  state  is  expressly  exempted  from  this  provision  in  Illinois. 
This  exemption  applies  to  all  takings  by  the  state  in  its  corporate 
capacity,  such  as  takings  by  the  Department  of  Public  Works  and 
Buildings,  but  does  not  exempt  local  governmental  agencies. 

(4)  Under  the  constitutions  of  1818  and  1848  there  was  no 
constitutional  limitation  upon  the  power  of  the  general  assembly  to 
authorize  the  condemnation  of  the  fee  simple  title  to  land.  The 
constitution  of  1870  provided  that  the  fee  of  land  taken  for  railroad 
tracks  should  remain  in  the  owner.  Such  a limitation  as  this  is  found 
in  the  constitutions  of  but  three  other  states,  Missouri,  Oklahoma,  and 
South  Dakota.  Since  the  abandonment  of  the  user  causes  a rever- 
sion of  the  right  of  possession  to  the  owner  of  the  fee,  this  provision 
works  a hardship  on  railroad  companies  in  the  event  of  a necessary 
removal  of  their  tracks.  In  cases  where  the  removal  of  tracks  is 
sought  by  a city  in  furtherance  of  its  improvement  plan,  the  provision 
becomes  an  obstacle.  The  elimination  of  this  restriction  has  been 
urged  by  civic  bodies  in  Chicago,  interested  in  the  Chicago  Plan.  If 
the  provision  is  taken  out  it  would  seem  that  the  roads  should  also  be 
given  the  right  to  condemn  the  fee  of  lands  now  occupied  by  them  in 
which  they  had  previously  acquired  easements  under  the  existing  con- 
stitution. 

(5)  The  constitution  of  1870  also  contains  a provision  not  found 
in  the  preceding  constitutions,  expressly  declaring  that  the  franchises 
and  properties  of  corporations  shall  be  subject  to  condemnation  for 
public  use.  The  provision  also  reasserts  the  guaranty  of  jury  trial 
in  eminent  domain  proceedings  by  or  against  corporations.  This 
provision  is  found  in  about  one-third  of  the  states.  Inasmuch  as  it 
has  been  held  that  the  power  of  eminent  domain  cannot  irrevocably 
be  granted  away  and  that  a breach  of  an  attempt  to  do  so  is  not  an 
impairment  of  the  obligation  of  any  contract,  this  provision  adds  no 
power  to  that  possessed  under  the  general  eminent  domain  clause. 


460 


While  the  Supreme  Court  of  Illinois  has  definitely  stated  that  the 
clause  adds  nothing,  its  elimination  might  possibly  be  construed  as 
manifesting  a real  intention  to  affect  the  law  in  some  way. 

(6)  The  convention  of  1870  also  extended  the  meaning  of  the 
term  “public  use”  to  include  two  purposes,  primarily  private,  by  in- 
serting provisions  authorizing  the  condemnation  of  land  for  roads 
for  private  and  public  use,  and  for  drainage  purposes.  Under  the 
prior  constitution,  it  had  been  held  that  the  General  Assembly  could  not 
authorize  the  taking  of  land  for  private  rights  of  way,  and  probably 
would  have  held,  had  the  question  been  presented,  that  the  taking 
of  land  for  drainage  purposes  was  not  a public  use.  Provisions  of  a 
similar  character  relating  to  roads  are  found  in  about  one-third  of 
the  states.  The  drainage  provision  is  also  found  in  about  the  same 
number  of  states.  The  drainage  section  was  amended  in  1878  so  as  to 
permit  the  construction  of  levees,  the  construction  of  drains  for 
sanitary  and  mining  purposes,  the  organization  of  drainage  districts 
and  the  levying  of  special  assessments  to  meet  the  cost  of  such  works. 


4G1 


III.  CONSTRUCTION  OF  THE  EMINENT  DOMAIN 

CLAUSES. 


What  constitutes  a public  use.  Property  cannot  be  taken  ex- 
cept for  public  use.  To  constitute  a public  use  the  property  must  be 
employed  so  as  to  render  a substantial  benefit  to  a relatively  large 
group  of  persons.1  There  are  four  types  of  cases.  (1)  Property 
may  be  taken  by  the  state  or  by  its  public  or  municipal  corporations 
for  the  purpose  of  housing  the  various  departments  and  agencies  of 
government.2  (2)  Property  may  be  taken  for  the  purpose  of  enabling 
the  state  or  its  agencies  to  carry  out  its  functions  of  government, 
such  as  would  be  in  the  interest  of  trade,  commerce,  navigation,  public 
health,  safety  and  general  welfare.  Accordingly  land  may  be  taken 
for  the  improvement  of  navigation,3  for  jails,4  public  hospitals,  public 
schools,  public  parks,5  roads  and  streets,6  forest  preserves,7  and  for 
the  carrying  on  of  any  business  legally  conducted  by  the  state  or  by 
its  agents.8  The  Attorney  General  has  given  an  opinion  that  the 
state  has  power  to  take  over  the  coal  mines  in  times  of  emergency 
such  as  were  brought  on  by  war  conditions.9  (3)  Property  may  be 
taken  by  private  corporations  if  the  use  to  which  the  property  is  to  be 
devoted  is  of  a character  such  that  the  public  have  the  legal  rights 
to  demand  some  service.  Land  may  under  authority  of  statute  be 
taken  by  railroad  companies  and  other  public  utilities  to  enable  them 
to  carry  on  such  business.10  Public  grist  mills  come  within  the  rule.11 
(4)  In  a limited  number  of  cases,  under  express  constitutional  pro- 
visions, land  may  be  taken  for  uses  which  in  the  absence  of  constitu- 
tional provision  may  have  been  regarded  as  private,  such  as  for  roads 
for  public  and  private  use12  and  for  drainage  purposes.13 

But  few  cases  have  been  presented  in  this  state  where  the  court 
has  ruled  that  a use  is  not  public.  It  has  been  held,  in  the  following 
cases,  that  the  proposed  use  was  not  public:  the  taking  of  a right  of 
way  by  a coal  mining  company,14  the  taking  of  land  for  a mill  of  which 

1C.  C.  C.  & St.  L.  Ry.  Co.  v.  Drainage  District,  213  111.  83  (1904). 

2 Deneen  v.  Unverzagt,  225  111.  378  (1907). 

3 Beidler  v.  Sanitary  District,  211  111.  628  (1904).  Opinions  of  the  Attorney 
General,  1908,  p.  85. 

“County  of  Mercer  v.  Wolff,  237  111.  74  (1908). 

5 Village  of  Depue  v.  Bauschenbach,  273  111.  574  (1916). 

6 Chicago  v.  Rord,  276  111.  549,  277  111.  407  (1916,  1917). 

7 Perkins  v.  Commissioners  of  Cook  Co.,  271  111.  449  (1916). 

8 Helm  v.  Grayville,  224  111.  274  (1906). 

9 Opinions  of  the  Attorney  General,  1917-18,  p.  606. 

10  L.  S.  & M.  S.  R.  R.  Oo.  v.  C.  & W.  I.  R.  R.  Co.,  97  111.  506  (1881). 

11  Gaylord  v.  Sanitary  District,  204  111.  576  (1903). 

12  Const.  1870,  Art.  IV,  Sec.  30. 

13  Const.  1870,  Art.  IV,  Sec.  31. 

14  Scholl  v.  German  Coal  Co.,  118  111.  427  (1887). 


462 


the  public  had  no  right  to  demand  a service,15  under  the  constitution 
of  1848,  the  taking  of  land  for  a private  road,36  and  the  taking  of  land 
by  a railroad  for  a side  track  to  a manufacturing  plant  for  the  sole 
purpose  of  transporting  the  products  of  the  plant.17 


Condemnation  of  property  already  devoted  to  public  use.  It  is 

well  established  that  property  already  devoted  to  public  use  is  still 
subject  to  condemnation  for  other  public  uses.  The  question  of  the 
propriety  of  authorizing  the  condemnation  of  such  property  is  pri- 
marily a legislative  question,  but  is  subject  to  judicial  review.18  Where 
the  legislative  grant  of  the  power  of  eminent  domain  is  general,  the 
condemnation  of  property  already  devoted  to  public  use  will  be  upheld 
only  when  the  court  finds  that  the  new  use  will  be  a different  use,  not 
necessarily  different  in  kind  but  in  degree,  by  which  the  public  obtains 
some  additional  advantage.  Extensions  of  streets  across  railways,19 
and  railways  across  streets,20  and  across  other  railways21  constitute 
new  uses.  A railroad  may  condemn  land  belonging  to  another  rail- 
road which  is  not  devoted  by  the  latter  to  railroad  purposes,22  or  even 
a part  of  the  tracks  of  another  railway  for  a short  distance,23  but 
cannot  condemn  a considerable  portion  of  the  right  of  way.21  A city 
sewer  may  be  constructed  through  land  devoted  to  public  uses  by  a sani- 
tary district.25  But  a general  grant  of  the  power  of  eminent  domain 
to  a city  does  not  authorize  the  condemnation,  by  the  city,  of  a strip 
of  land  through  a county  poor  farm,26  nor  the  condemnation  of  a 
part  of  a library  building  for  a city  street.27  The  taking  of  property 
already  devoted  to  public  use  does  not  impair  the  obligation  of  any 
contract.28 

There  is  one  special  problem  which  has  arisen  in  this  state  with 
reference  to  the  power  to  condemn  land  dedicated  to  public  use.  A 
portion  of  what  now  comprises  Grant  Park  in  the  city  of  Chicago 
was  dedicated  by  the  Canal  Commissioners  to  the  public.  The  plat 
designated  the  lake  front  strip  as  “open  ground,  no  buildings”. 
Another  portion  was  dedicated  by  the  United  States  and  the  plat 
similarly  stated  ‘‘public  grounds  forever  to  remain  vacant  of  build- 
ings.” These  dedications  were  duly  accepted  by  the  City  of  Chicago. 


15  Gaylord  v.  Sanitary  District.  204  111.  576  (1903). 

16  Nesbit  v.  Trumbo.  39  111.  110  (1866).  Art.  IV,  Sec.  30,  Constitution  of 
1870.  expressly  allows  the  taking1  of  land  for  roads  for  private  and  public  use. 

17  C.  & E.  I.  v.  Wiltse.  116  111.  449  (1886). 

18  People  v.  Walsh.  96  111.  2321  (1880);  L.  S.  & M.  S.  R.  R.  Co.  v.  C.  & W.  I. 
R.  R Co.,  97  111.  506  (1881). 

19  C.  R.  I.  & P.  R.  'R.  Co.  v.  Lake.  71  111.  333  (1874);  C.  & A.  R.  R.  Co.  v. 
Pontiac.  169  111.  155  (1897). 

20  M.  City  Rv.  Co.  Chi.  W.  D.  Ry.  Co.,  87  111.  317  (1877). 

21  E.  St.  L.  & C.  Ry.  Co.  v.  B.  C.  Ry.  Co..  159  111  544  (1896);  I.  C.  R.  R.  Co. 
v.  C.  B.  & N.  R.  R.  Co..  122  111.  473  (1887). 

22  W.  D.  Ry.  Co.  v.  El.  R.  R.  Co.,  152  111.  519  (1894). 

23  T j.  S.  & M.  S.  R.  R.  Co.  v.  C.  & W.  I.  R.  R.  Co.,  97  111.  506  (1881). 

24  Central  Ry.  Co.  v.  Fort  Clark  H.  Ry.  Co.,  81  111.  523  (1876). 

25  Chicago  v.  Sanitary  District.  272  Til.  37  (1916). 

26  Edwardsville  v.  Madison,  251  111.  265  (1911). 

27  Moline  v.  Greene,  252  111.  475  (1911). 

28Hvde  Park  v.  Cemetery  Association,  119  Til.  142  (1886):  West  River  Bridge 
Co.  v.  Dix,  6 How.  (U.  S.)  507;  Long  Island  Water  Supply  Co.  v.  Brooklyn,  166 
U.  S.f  685. 


463 


I lie  general  assembly  of  Illinois  subsequently  authorized  the  condem- 
nation of  the  easements  thus  created  and  possessed  by  the  owners  of 
the  property  abutting  on  the  park,  and  authorized  the  erection  therein 
of  a museum.  The  court  held29  that  the  General  Assembly  had  no 
power  to  authorize  the  condemnation  of  these  easements  because 
the  land  had  been  accepted  under  these  restrictions,  although  the 
general  holding  is  that  property  already  subjected  to  public  use  can 
be  condemned  for  other  uses,  and  that  the  state  cannot  irrevocably 
barter  away  its  power  of  eminent  domain,  and  that  the  breach  of 
any  agreement  not  to  exercise  the  power  of  eminent  domain  does  not 
impair  the  obligation  of  any  contract.30  The  decision  was  not  ex- 
pressly based  upon  the  ground  that  the  proposed  new  use  was  not 
public  but  was  based  upon  the  broad  proposition  that  the  state,  having 
accepted  the  land  with  the  restrictions,  could  not  rid  itself  of  them 
for  any  purpose.  Three  of  the  members  of  the  court  dissented.  The 
precise  point  has  apparently  not  arisen  elsewhere.  In  view  of  the 
probability  that  the  needs  of  the  state  may  often  demand  a change  in 
the  use  of  property  dedicated  under  restrictions,  this  decision  may 
prove  of  difficulty. 


Power  to  condemn  fee  in  land.  Under  existing  statutes  in 
Illinois  it  appears  to  be  true  that  the  power  of  eminent  domain  may 
not  be  exercised  by  local  communities  for  the  purpose  of  condemning 
the  fee  of  land.  Several  of  the  decisions  upon  this  matter  seem  to 
squint  at  a notion  that  there  is  a constitutional  protection  in  the  in- 
dividual not  to  be  deprived  of  a fee  if  less  than  a fee  may  be  regarded 
as  sufficient  to  meet  the  public  need.  Some  constitutional  basis  for 
this  view  seems  to  be  implied  in  the  case  of  Tacoma  Safety  Deposit 
Co.  v.  Chicago,31  although  the  real  basis  of  the  court’s  decision  will 
be  found  on  page  197 : “This  property  was  condemned  in  1851,  and 
at  that  time  there  was  no  statute  in  force  in  this  state  expressly 
authorizing  a city  to  take  the  fee  of  real  estate  for  street  purposes, 
and  we  think  the  law  is  clear  that  before  the  city  could  acquire  the 
fee  to  said  real  estate  for  street  purposes,  it  must  appear  there  was  a 
statute  in  force  which,  by  its  terms,  or  by  necessary  implication, 
authorized  the  city  to  take  said  property  in  fee  for  the  purpose  of 
widening  said  street”. 

A similar  statement  will  be  found  in  the  case  of  Miller  v.  Com- 
missioners of  Lincoln  Park,32  and  in  the  case  of  Lockie  v.  Mutual 
Union  Telegraph  Co.33 

The  actual  decisions  so  far  upon  this  matter  have  been  based  upon 
purely  statutory  grounds,  and  have  construed  a right  to  condemn 
conferred  by  statute  as  a right  to  condemn  a user  only.  Of  course,  it 

29  South  Park  Commissioners  v.  Ward,  248  111.  299  (1910).  Dictum  to  the 
contrary  in  L.  & N.  R.  R.  Co.  v.  Cincinnati,  76  Ohio  St.  481. 

30  Village  of  Hyde  Park  v.  Cemetery  Association,  119  111.  142  (1886);  Long 
Island  Water  Supply  Co.  v.  Brooklyn,  166  U.  S.  685;  West  River  Bridge  Co.  v. 
Dix,  6 How.  507. 

31  247  111.  192'  (1910). 

32  278  111.  400  at  page  407  (1917). 

33  1 03  111.  401  (1882). 


464 


is  possible  that  the  court,  having  taken  this  view,  might  at  some  time 
if  the  constitution  is  left  unchanged,  take  the  further  step  of  saying 
that  the  words  “public  use”  are  to  be  limited  to  the  taking  of  only 
such  an  interest  in  the  property  as  is  essential  for  the  purpose.  On 
the  analogous  questions  of  the  necessity  for  a particular  taking  and 
of  the  amount  of  land  needed,  it  has  been  held  that  these  questions 
are  for  the  court,  although  the  condemning  authority  possesses  a 
wide  discretion  in  these  matters.34  In  other  states  it  is  held  that  the 
fee  may  be  taken.35 

The  only  express  constitutional  limitation  in  Illinois  upon  the 
power  of  the  general  assembly  to  authorize  the  taking  of  the  fee  in 
lands  is  the  unusual  provision,  found  in  Art.  II,  Sec.  13,  which  de- 
clares that  the  fee  of  lands  taken  for  railroad  tracks  shall  remain  in 
the  owner.  This  restriction  upon  railroads  is  found  only  in  the  con- 
stitutions of  three  other  states,  Missouri,  Oklahoma  and  South  Dakota. 

It  has  been  urged  that  this  restriction  upon  railroads  is  unjust 
because  the  effect  of  an  abandonment  of  an  easement  or  of  its  use 
for  a purpose  other  than  the  one  for  which  it  was  condemned  causes 
a reverter36  to  the  owner  or  to  his  heirs.  In  its  report  on  excess  con- 
demnation, the  Chicago  Bureau  of  Public  Efficiency  in  urging  the 
elimination  of  this  clause,  states: 

“There  is  a public  interest  in  this  matter  in  connection  with  city 
planning.  One  of  the  aims  of  Chicago  City  planners  is  to  secure  a 
rearrangement  of  railroad  terminals  in  Chicago  which  would  permit 
of  the  abandonment  for  railroad  use  of  considerable  railroad  property. 
It  would  seem  that  the  constitution  should  provide  that  the  railroads, 
after  having  made-  use  of  property  in  good  faith  for  railroad  purposes 
for  a specified  number  of  years,  should  retain  title  and  have  the  power 
to  sell  it  and  retain  the  proceeds  in  case  the  city  authorities  agree  and 
it  is  no  longer  needed  for  railroad  purposes.” 


Taking  and  damaging  of  property.  The  constitutions  of  1818 
and  1848  required  the  payment  of  compensation  only  when  property 
was  taken  or  applied  to  public  use.  The  word  “applied”  seems  not  to 
have  been  construed,  nor  to  have  added  anything  to  the  word  “taken”. 
The  taking  of  title  or  of  an  easement  clearly  came  within  the  pro- 
tection of  the  clause.  Additional  servitudes  upon  land  constituted 
a taking.  The  typical  cases  arose  where  a city  street,  the  fee  of  which 
was  in  the  abutter,  was  used  for  railroad  purposes,37  or  for  telegraph 
or  telephone  lines.38  Street  railways  were  held  to  be  but  a natural 
use  of  the  street  and  therefore  did  not  constitute  an  additional  ser- 
vitude.39 Where  the  fee  of  the  street  was  in  the  city,  the  property 


84  Chicago  v Lehman,  262  111.  468  (1914). 

35  Attorney  General  v.  Williams,  174  Mass.  476;  Dingley  v.  Boston,  100  Mass. 
544;  Fairchild  v.  St.  Paul,  46  Minn.  540. 

30  Bell  v.  Mattoon  Waterworks  Co.,  245  111.  544  (1910);  Sullivan  v.  Atchinson, 
etc.  R.  R.  Co.,  251  111.  108  (1911);  C.  & E.  I.  R R.  Co.  v.  Clapp,  201  111.  418  (1903). 

37  I.  B.  & W.  R.  R.  Co.  v.  Hartley,  67  111.  439  (1873);  Wilder  v.  Aurora  Trac- 
tion Co.,  216  111.  493  (1905). 

3*  Board  of  Trade  Tel.  Co.  v.  Barnett,  107  111.  507  (1883);  Burrall  v.  Am. 
Tel.  Co.,  2 2' 4 111.  266  (1906). 

39  C.  B.  & Q.  R.  R.  Co.  v.  West  Chicago  Street  R.  R Co.,  156  111.  255  (1895). 


465 


Could  be  put  to  any  use  without  compensating  abutting  owners  for 
resulting  damage  sustained  by  them.40  For  injuries  to  rights  in  land, 
which  did  not  constitute  a technical  taking,  there  was  a right  to  com- 
pensation whenever  the  invasion  of  the  natural  right  produced  a 
direct  and  physical  injury  to  property,  such  as  the  overflowng  of  the 
owner’s  land.41  In  many  jurisdictions  the  word  “taken”  was  given  a 
more  restricted  meaning.  Under  the  Illinois  rule  the  property  owner 
was  given  some  right  to  compensation  for  consequential  .damage,  but 
since  this  right  was  limited  to  direct  and  physical  injuries,  his  rights 
were  not  coextensive  with  his  rights  against  private  persons  at  com- 
mon law.  There  was  one  apparent  exception  to  the  rule  that  con- 
sequential injuries  to  property  did  not  constitute  a taking.  Where  a 
part  of  a tract  was  taken  and  the  part  not  taken  was  injuriously  af- 
fected, it  was  held  that  the  entire  injury,  measured  by  the  difference 
between  the  fair  cash  market  value  of  the  part  not  taken  before  and 
after  the  taking,  plus  the  fair  cash  market  value  of  the  parcel  taken, 
was  a taking.42  This  rule  has  remained  unchanged  under  the  consti- 
tution of  1870.43 

The  primary  reason  for  a change  in  the  Constitution  of  1870  was 
to  give  the  owner,  no  part  of  whose  land  was  taken,  a right  to  recover 
compensation  for  injuries  of  a non-physical  character.  This  change 
was  accomplished  by  the  introduction  of  the  word  “damage”.  Illinois 
was  the  first  state  to  adopt  this  change.  As  the  provision  now  reads : 
“Private  property  shall  not  be  taken  or  damaged  for  public  use  with- 
out just  compensation.” 

Provisions  of  like  nature  have  now  been  adopted  in  Arizona, 
Arkansas,  California,  Colorado,  Georgia,  Louisiana,  Minnesota,  Miss- 
issippi, Missouri,  Montana,  Nebraska,  New  Mexico,  North  Dakota, 
Oklahoma,  South  Dakota,  Texas,  Utah,  Virginia,  Washington,  West 
Virginia,  and  Wyoming.  In  some  states  where  the  constitution  does 
not  provide  for  a right  to  compensation  for  the  damaging  of  property 
the  right  is  conferred  by  statute.  In  Massachusetts  this  practice  has 
prevailed  for  many  years.  In  some  cases  the  statutory  right  to  dam- 
ages goes  beyond  the  requirement  of  any  constitutional  provision,  as 
for  example,  in  Massachusetts  and  New  York,  where  land  is  taken 
and  submerged  for  the  purpose  of  creating  a water  supply,  statutes 
authorize  the  recovery  of  damage  to  business  conducted  on  land 
taken.44  In  such  cases  the  prevailing  rule  is  that  the  owner  is  limited 
to  the  market  value  of  his  land.45 

Some  difficulty  has  been  encountered  in  defining  the  word  “dam- 
age” in  this  new  constitutional  sense.  The  court  had  three  alternatives 
open:  (1)  It  might  have  held  that  the  effect  of  the  change  was  to 

impose  the  same  degree  of  liability  for  damage  inflicted  under  legis- 
lative authority,  as  had  always  been  imposed  at  common  law  upon 

40  Moses  v.  P.  R.  R.  Co.,  21  111.  516  (1859);  Murphy  v.  Chicago,  29  111.  279 
(1862). 

41  Nevins  v.  Peoria.  41  111.  502  (1866). 

42  State  v.  Evans,  3 111.  208  (1840);  Curry  v.  Mt.  Sterling,  15  111.  320  (1853). 

43  W.  St.  L.  & P.  R.  R.  Co.  v.  McDougall,  126  111.  Ill  (1888). 

44  Earle  v.  Commonwealth,  180  Mass.  579.  In  re  Board  of  Water  Supply  142 
N.  Y.  S.  83.  Laws  1909  N.  Y.  Ch.  56,  Sec.  7. 

43  Braun  v.  West  Side  El.  R.  R.  Co.  166  111.  434  (1896). 


466 


private  individuals40  for  damaging  property  in  a similar  manner. 
(2)  The  court  might  have  adopted  the  rule,  which  had  been  applied 
and  still  does  apply  to  partial  takings,  and  defined  “damage”  to  mean 
the  difference  between  the  fair  cash  market  value  of  the  property  be- 
fore and  after  the  infliction  of  the  damage.47  But  the  court  adopted 
neither  of  these  rules.  The  first  was  rejected  because  it  did  not  in- 
clude some  kinds  of  injuries  for  which  there  was  no  common  law  pre- 
cedent and  the  second  because  this  rule  would  have  required  payment 
of  compensation  for  damage  of  a general  character.  A middle  ground 
was  selected  which  has  been  followed  rather  generally  throughout  the 
country.  This  rule  is  that  compensation  is  allowed  in  all  cases  where 
there  has  been  some  physical  disturbance  of  a right,  either  public  or 
private,  which  one  enjoys  in  connection  with  his  property  and  which 
gives  to  it  additional  value,  by  reason  of  which  disturbance  the  owner 
has  sustained  a special  damage  with  respect  to  his  property  which  was 
not  sustained  by  the  public  generally. 

A railway48  or  tunnel49  which  shuts  off  access  to  a street  consti- 
tutes such  special  damage.  This  construction  includes  all  cases  action- 
able at  common  law,  but  the  non-existence  of  common  law  liability  does 
not  in  itself  defeat  the  constitutional  right  to  compensation.50  Specu- 
lative damage,51  general  damage,52  such  as  the  community  as  a whole 
may  sustain,  damage  which  does  not  arise  out  of  the  violation  of  rights, 
such  as  the  destruction  of  switch  connections  to  which  the  claimant  had 
no  right,53  and  damage  caused  by  the  exercise  of  the  police  power,54 
are  not  recoverable.  The  ordinary  police  regulations  which  either  place 
a restriction  upon  the  use  of  property,  such  as  for  billboard  purposes, 
or  which  require  the  expenditure  of  money  in  the  interest  of  the  public 
welfare,  such  as  for  making  railroad  crossings  safe,  without  compensa- 
tion, are  not  contrary  to  the  principle  adopted  by  the  introduction  of 
the  damage  clause  in  the  eminent  domain  provision,  because  in  these 
cases  the  damage  is  of  a general  and  not  of  a special  character,  and 
general  damage  is  not  at  any  time  recoverable. 

Where  property  is  destroyed  under  circumstances  more  nearly 
resembling  special  damage,  as  where  animals  are  killed55  or  buildings 
destroyed,56  to  prevent  the  spread  of  disease,  the  absence  of  a consti- 
tutional right  to  compensation  is  somewhat  contrary  to  the  principle 
embodied  in  the  damage  clause  of  the  eminent  domain  provision.  Sim- 
ilarly under  the  drainage  rule  of  this  State,  whereby  the  upper  pro- 
prietor has  an  easement  of  drainage  over  the  lower  land  of  all  surface 
waters  that  naturally  flow  in  that  direction,  even  though  the  flow  is 
increased  by  improved  drainage  on  the  upper  land,  it  has  been  held 

46  This  is  the  English  rule  and  seems  to  have  been  adopted  in  Arkansas, 
California,  Colorado.  Georgia,  Texas,  Washington  and  West  Virginia. 

47  This  construction  seems  to  be  placed  upon  the  damage  clause  in  Ne- 
braska and  Texas. 

48  Rigney  v.  Chicago,  102  111.  64  (1881)  reviews  the  earlier  cases  and  lays 
down  the  rule  which  has  been  followed  in  subsequent  cases. 

49  Barnard  v.  Chicago,  270  111.  27  (1915). 

59  Aldis  v.  Union  El.  R.  R.  Co.,  203  111.  567  (1903). 

51 C.  & M.  El.  Ry.  Co.  v.  Mawman,  206  111.  182  (1903). 

52  Frazer  v.  Chicago,  186  111.  480  (1900);  I.  C.  R.  R.  Co.  v.  Trustees  of 
Schools,  212  111.  406  (1904). 

53  Otis  Elevator  Co.  v.  Chicago,  263  111.  419  (1914). 

54  C.  & N.  W.  Ry.  Co.  v.  Chicago,  140  111.  309  (1892). 

55  Pearson  v.  Zehr,  138  III.  48  (1891). 

69  Sings  v.  Joliet,  237  111.  300  (1908). 


467 


that  a railroad  company,  as  a lower  proprietor,  must  bear  the  expense 
of  construction  of  new  bridges  made  necessary  by  improved  drainage 
above.57  The  destruction  of  property  under  the  police  power  is  not  a 
technical  taking  nor  is  it  damage,  because  the  property  is  not  used  by 
the  agency  which  destroyed  it  and  because,  in  this  kind  of  case,  it  may 
be  said  that  no  legal  right  has  been  infringed.  In  such  cases  property 
becomes  subservient  to  the  public  welfare.  Any  constitutional  require- 
ment that  damages  be  paid  in  such  cases  might  have  the  effect,  in  the 
end,  of  preventing  any  action  being  taken  at  all  where  the  public  wel- 
fare required  action.  A constitutional  right  to  compensation  to  owners 
of  lower  lands  for  damages  caused  by  improved  drainage  above  would 
affect  a change  in  a well-established  rule  of  property  in  this  State 
which  has  proved,  on  the  whole,  to  be  a proper  one.  The  State  is  not 
prevented  from  making  voluntary  compensation  where  it  sees  fit. 


Measure  of  compensation.  The  constitutions  of  1818  and  1848 
each  required  that  “just  compensation”  be  paid  for  property  taken 
and  since  the  constitution  of  1870,  this  requirement  applies  also  to 
the  damaging  of  property.  In  the  constitutions  of  some  states  the 
words  “adequate”,  “reasonable”,  “full”,  “due”,  or  “fair”  are  em- 
ployed, but  it  does  not  appear  that  the  use  of  these  words  has  led  to 
any  different  construction.  As  regards  a taking,  there  are  three  situa- 
tions: first,  where  the  whole  of  a tract  is  taken;  second,  where  a part 
of  a tract  is  taken  and  the  parcel  not  taken  is  injuriously  affected; 
third,  where  a part  is  taken,  and  the  part  not  taken  is  specially  bene- 
fited. 

(1)  Where  the  whole  of  a tract  is  taken,  the  measure  ©f  compen- 
sation is  the  fair  cash  market  value  of  the  property  taken.  This  has 
been  the  rule  under  all  three  constitutions.58 

(2)  Where  a part  of  a tract  is  taken  and  the  parcel  not  taken  is 
injuriously  affected,  the  owner  is  entitled  to  the  fair  cash  market  value 
of  the  part  taken  plus  the  difference  between  the  fair  cash  market 
value  of  the  part  not  taken  before  and  after  the  taking.  This  rule 
has  been  followed  under  the  constitutions  of  18  1 8, 59  1 848, 60  and  1870.61 

(3)  Where  a part  of  a tract  is  taken  and  the  part  not  taken  has 
been  specially  benefited,  under  the  constitutions  of  181862  and  1848, 03 
the  rule  was  that  the  amount,  which  represented  the  special  benefits 
could  be  deducted  from  the  fair  cash  market  value  of  the  part  taken, 
and  the  remainder  would  be  the  amount  of  compensation  to  which  the 

57  C.  B.  & Q.  Ry.  Co.  v.  People.  212  111.  103  (1904);  200  U.  S.  561.  There 
is  a right  to  compensation,  if  the  water  turned  upon  the  railroad  company  is 
not  such  as  would  in  a state  of  nature  ultimately  reach  its  property.  People 
v.  C.  & E.  I.  R.  R.  Co.,  262  111.  492  (1914);  East  Side  District  v.  E.  St.  L.  & O. 
Ry.  Co..  279  111.  123  (1917). 

58  State  v.  Evans,  3 111.  208  (1840);  Haslam  v.  G.  & S.  W.  R.  R.  Co.,  64 
111.  353  (1872);  Price  v.  Union  Drainage  District,  253  111.  114  (1911). 

59  State  v.  Evans,  3 111.  208  (1840). 

69  Alton  R.  R.  Co.  v.  Carpenter,  14  111.  190  (1852). 

61 W.  St.  J,.  & P.  R.  R.  Co.  v.  McDougall,  126  111.  Ill  (1888). 

62  State  v.  Evans,  3 111.  208  (1840). 

* 63  Alton  R R.  Co.  v.  Carpenter,  14  111.  190  (1852);  Curry  v.  Mt.  Sterling, 
15  111.  320  (1853). 


468 


owner  was  entitled.  If  the  special  benefits  to  the  part  not  taken 
equalled  or  exceeded  the  market  value  of  the  part  taken,  the  owner 
received  no  pecuniary  compensation.  The  eminent  domain  act  of 
1852  changed  this  rule  and  forbade  the  set-off  of  special  benefits 
against  the  value  of  the  part  taken  and  the  constitutionality  of 
this  act  was  apparently  not  questioned.64  Then  came  the  constitution 
of  1870  with  its  new  provision  requiring  the  payment  of  compensation 
when  property  had  been  damaged  under  color  of  eminent  domain. 
The  primary  object  of  this  clause  was  to  give  the  property  owner  a 
right  to  compensation  when  no  part  of  his  property  had  been  taken, 
because  he  was  adequately  protected  when  a part  had  been  taken,  for 
in  this  case,  he  was  paid  whatever  damage  was  inflicted  upon  his  re- 
maining land.  There  is  nothing  to  show  that  the  damage  clause  was 
intended  to  affect  any  other  situation  than  that  where  no  property  was 
taken.  Nevertheless  the  court  held  that  the  effect  of  the  new  eminent 
domain  clause  was  to  prevent  the  set-off  of  benefits  to  remaining  land 
against  the  value  of  the  parcel  taken.  No  reason  was  given  for  this 
decision,  the  court  merely  saying:  “It  was  evidently  the  intent  of 

the  framers  of  the  article  * * * lhat  Ihe  full  value^-oT-land  taken 
should  be  paid  in  money,  alone,  disregarding  all  benefits  and  advan- 
tages that’  might  result  to  that  portion  of  the  owner’s  land  not  taken. 
Even  if  the  Act  of  1873  would  bear  the  construction  contended  for 
(i.e.  its  similarity  to  the  Act  of  1845  under  which  special  benefits 
were  set  off  against  total  compensation)  the  provisions  of  the  con- 
stitution must  prevail  regardless  of  any  act  of  the  legislature.  The 
right  to  be  paid  for  land  condemned,  in  money,  and  not  in  benefits,  is 
guaranteed  by  the  constitution,  which  it  is  not  within  the  power  of  the 
legislature  to  take  away.”65  This  rule  has  been  followed  without  fur- 
ther question66  and.  is  applied  both  to  takings  by  private  corporations 
and  by  agencies  of  the  state. 

This  is  the  rule  in  Colorado,  Georgia,  Idaho,  Louisiana,  Maryland, 
Montana,  Nebraska,  New  York,  Oregon,  Rhode  Island,  Tennessee, 
Texas,  Utah,  Virginia,  West  Virginia,  and  Wisconsin.  The  reason 
usually  stated  for  this  rule  is  that  the  constitution  requires  payment 
of  compensation  to  be  in  money.  Benefits  therefore  cannot  be  used 
as  a medium  of  payment,  but  perhaps  behind  that  lies  the  notion  that 
anticipated  benefits  do  not  materialize  even  though  they  be  found  to 
exist  at  the  time  of  trial.  The  contrary  rule  obtains  in  Connecticut, 
Delaware,  Maine,  Massachusetts,  Michigan,  Minnesota,  Missouri,  New 
Hampshire,  New  Jersey,  North  Carolina,  Pennsylvania,  and  Vermont, 
and  in  the  United  States  Supreme  Court,  under  which  benefits  to  the 
part  not  taken  may  be  set  off  against  the  value  of  the  part  taken. 

In  the  remaining  states — Arizona,  Arkansas,  California,  Florida, 
Iowa,  Kansas,  North  Dakota,  Ohio,  Oklahoma,  South  Dakota, 
and  Washington — there  are  special  constitutional  provisions  which 


64  Hayes  v.  Ottawa,  etc.  R.  R.  Co.  54  111.  373  (1870);  Peoria  etc.  R.  R.  Oo. 
v.  Laurie,  63  111.  264  (1872). 

65  Carpenter  v.  Jennings,  77  111.  250  (1875). 

66  Harwood  v.  Bloomington,  124  111.  48  (1888);  People  v.  Burrall,  258  111. 
509  (1913). 


469 


forbid  the  setting  off  of  benefits  to  land  not  taken  against 
the  value  of  the  part  taken.  In  Iowa  and  Oklahoma  these 
prohibitions-  apply,  apparently,  to  taking  both  by  agencies 
of  the  state  and  by  private  corporations,  but  in  the  other  states  enume- 
rated, the  prohibition  against  the  set-off  of  benefits  applies  only  to 
takings  by  private  corporations.  In  these  states,  therefore,  when  prop- 
erty is  taken  by  an  agency  of  the  state,  benefit  to  the  remaining  parcel 
may  be  set  off.  In  California,  municipal  corporations  only  were  al- 
lowed to  set  off  benefit  against  damage,  but  by  an  amendment  adopted 
in  1918,  the  right  to  set-off  benefits  was  extended  to  counties.  It 
thus  appears  that  in  about  half  the  states,  agencies  of  the  state  in  taking 
property  for  public  improvements  may  set  off  special  benefits  to  the 
part  not  taken  against  the  value  of  the  part  taken. 

The*  rule  in  Illinois,  forbidding  the  set-off  of  benefits  to  the  part 
not  taken  against  the  value  of  the  part  of  the  lot  taken,  does  not  pre- 
vent the  levying  of  special  assessments  against  the  remaining  parcel 
where  the  condemning  authority  has  the  power  of  levying  special 
assessments,  but  in  Illinois  the  power  to  levy  special  as- 
sessments for  the  construction  of  local  improvements  is  conferred 
only  upon  cities,  towns,  villages,  park  districts  and  drainage  districts.67 
The  result  is  that  in  all  cases  where  property  is  taken  by  the  State  or 
by  any  of  its  agencies,  which  agencies  do  not  have  the  power 
of  levying  special  assessments,  such  as  counties,  school  districts, 
or  the  Department  of  Public  Works  and  Buildings,  property  tak- 
en must  be  paid  for  in  full  without  regard  to  special  benefits 
to  the  part  of  the  lot  not  taken.  The  effect  of  the  rule  for- 
bidding the  set-off  of  benefits,  when  considered  in  connection 
with  the  provision  relating  to  special  assessments,  is  to  dis- 
criminate against  those  agencies  which  do  not  possess  this  power.  It 
would  seem  that  all  governmental  bodies  which  possess  the  power  of 
eminent  domain  should  have  the  power  to  set-off  special  benefits 
against  damage  or  to  accomplish  substantially  the  same  purpose  by 
special  assessments.  If  the  rule  were  so  as  to  allow  the  set-off  of 
benefits,  it  would  then  be  in  accord  with  the  general  rule  which  has 
always  been  in  force  in  this  state,  that  as  regards  the  part  not  taken, 
viewed  separately,  special  benefits  to  this  parcel  may  be  taken  into 
consideration  in  determining  whether  the  part  not  taken  has  been 
specially  damaged  or  specially  benefited,  i.e.,  in  this  case  benefits  are 
set  off  against  special  damage.08  The  allowance  of  set-off  also  would 
be  in  harmony  with  the  principle  of  special  assessments,  but  would  not 
be  open  to  all  the  objections  which  might  be  urged  against  a grant  of 
the  power  of  special  assessments  to  all  governmental  agencies  of  the 
state,  for  in  no  case  could  the  amount  of  the  set-off  exceed  the  value 
of  the  land  taken. 


87  Constitution,  Art.  IX,  Sec.  9.  Park  districts  may  make  local  improve- 
ments by  special  assessments.  Van  Nada  v.  Goedde.  263  111.  105  (1914);  Art 
IV,  Sec.  31;  Drainage  districts  may  levy  special  assessments. 

68  State  v.  Evans,  3 111.  208  (1840);  Curry  v.  Mt.  Sterling,  15  111.  320  (1853); 
West  Side  Elevated  Ry.  Co.  v.  Stickney,  150  111.  362  (1894);  Brand  v.  Union 
Elevated  Ry.  Co.,  258  111.  133  (1913),  238  IT.  S.  586;  Oil  Belt  Ry.  Co.  v.  Lewis, 
259  111.  108  (1913). 


470 


Medium  and  time  of  payment  of  compensation.  As  regards 

the  medium  of  payment  the  term  “just  compensation”  has  been  con- 
strued to  require  a payment  in  money.09  As  above  stated,  this  rule  ap- 
plies always  in  cases  of  actual  takings.  The  owner  is  entitled  to  be  paid 
in  money  for  the  land  taken  irrespective  of  benefit  to  remaining  land. 
Damage  to  property  must  also  be  paid  for  in  money,  with  the  quali- 
fication, that  elements  of  special  benefit  may  be  set  off  against  ele- 
ments of  special  damage  to  the  land,  merely  for  the  purpose  of  ascer- 
taining whether  the  tract  has  been  specially  benefited  or  specially 
damaged.70  In  a few  states  the  requirement  that  compensation  be  made 
in  money  is  expressly  provided  for  in  the  Constitution.71  In  Illinois 
there  has  never  been  any  such  provisions. 

With  respect  to  the  time  of  payment,  none  of  the  constitutions  of 
Illinois  has  contained  any  express  requirement  that  compensation 
be  made  before  the  taking,  but  the  courts  have  held,  as  a matter  of 
construction,  that  actual  payment  was  a condition  precedent  to  the 
right  to  take.72  Accordingly  an  attempted  taking  not  preceded  by 
payment  will  be  enjoined,73  although  it  is  held  that  after  compen- 
sation has  been  ascertained  in  the  condemnation  proceedings,  the 
condemning  authority  may  enter  into  the  temporary  possession  of  the 
premises  upon  the  giving  of  the  required  appeal  bond.74  The  Attor- 
ney General  has  rendered  an  opinion  that  the  requirement  of  pre- 
payment does  not  apply  to  takings  by  the  state  in  its  corporate  ca- 
pacity and  that  in  such  a case  an  appropriation  by  the  legislature 
probably  would  be  sufficient.75 

Prepayment  is  not  required  in  most  states,  the  courts  constru- 
ing Constitutional  provisions,  similar  to  the  Illinois  provision,  as 
merely  requiring  the  giving  of  adequate  security  for  payment.  In 
takings  by  the  state  or  by  any  of  its  agents  the  courts  of  other  states 
generally  hold  that  the  owner  possesses  adequate  security  if  he  has 
a right  to  sue  the  condemning  authority.  In  takings  by  private  cor- 
porations, the  right  to  bring  a suit  is  held  to  be  insufficient.  In  this 
case  the  courts  require  either  a deposit  of  money  in  court  or  the 
giving  of  a bond  approved  by  the  court.  The  constitutions  of  sev- 
eral states  contain  express  provisions  relating  to  the  time  of  pay- 
ment. Some  require  prepayment,  others  require  prepayment  or  se- 
curity.76 The  constitution  of  California,  which  has  expressly  required 
prepayment  or  deposit  in  all  cases,  was  amended  in  1918  by  exempting 
municipal  corporations  and  counties  from  this  provision. 

With  respect  to  the  damaging  of  property  the  rule  in  Illinois, 
as  well  as  in  other  states,  is  that  damage  may  be  inflicted  without 

6#  Caldwell  v Highway  Commissioners,  249  111  366  (1911), 

70  West  Side  Elevated  Ry.  Co.  v.  Stickney,  150  111.  363  (1894). 

71  Ohio,  Texas,  Vermont,  Arkansas,  Kansas,  South  Carolina,  Arizona,  Cali- 
fornia, North  Dakota. 

72  Caldwell  v.  Highway  Commissioners,  249  Til.  366  (1911). 

73  Commissioners  v.  Durham,  43  111.  86  (1867). 

7«  Mitchell  v.  I.  & St.  L,  'R.  R.  Co.,  68  111.  286  (1873). 

75  Opinions,  1917-18,  p.  72. 

76  Alabama,  Arizona,  Arkansas,  California,  Colorado,  Georgia,  Indiana,  Iowa, 
Kansas,  Kentucky,  Louisiana,  Maryland,  Michigan,  Minnesota,  Mississippi, 
Missouri,  Montana,  Nevada,  New  Jersey,  North  Dakota,  Ohio,  Oklahoma,  Penn- 
sylvania, Oregon,  South  Carolina,  South  Dakota,  Texas,  Washington,  West 
Virginia. 


471 


making  payment  in  advance.  An  injunction  will  not  be  granted  to 
restrain  the  infliction  of  damage.77  The  reason  for  the  rule  is  that 
the  amount  of  the  damage  can  not  be  determined  before  it  has  been 
sustained.  In  a few  states  payment  must  be  made  before  the  dam- 
age occurs.78  The  express  requirement  of  prepayment,  inserted  in 
the  eminent  domain  provision  containing  the  damage  clause,  may, 
therefore,  have  the  effect  of  making  mandatory  the  issuance  of  an 
injunction  to  restrain  the  infliction  of  damage  until  payment  is  made. 
There  is  one  important  type  of  case  where  there  is  a conflict  of 
authority  as  to  the  right  to  obtain  an  injunction.  Where  a railway 
is  constructed  upon  a public  highway  the  fee  of  which  is  in  the 
public,  the  rule  in  Illinois79  and  in  most  states  is  that  an  injunction 
will  not  be  granted  to  restrain  the  infliction  of  the  damage,  because 
the  injury  to  the  abutting  property  owners  does  not  constitute  a tak- 
ing, but  under  the  New  York80  constitution,  which  does  not  contain 
the  damage  clause,  the  rule  was  laid  down,  in  the  elevated  railroad 
cases,  that  an  injunction  will  be  granted  to  restrain  the  construction 
of  the  road  until  compensation  is  paid  — on  the  theory  that  the 
abutting  owners  had  an  easement  of  light  and  air  in  the  street.  Thus 
the  construction  of  the  road  amounts  to  a taking  of  these  easements. 
In  states  where  the  damage  clause  is  found,  the  abutters  on  streets, 
the  fee  of  which  is  in  the  public,  possess  natural  rights  of  access  only, 
interference  with  which  constitutes  damage,  but  does  not  constitute 
a taking. 


Province  of  the  courts,  the  legislature  and  the  condemning 
authority.  There  has  never  been  any  provision  in  the  constitutions 
of  Illinois  which  expressly  makes  the  question  of  what  constitutes  a 
public  use  one  for  judicial  determination,  but  this  result  has  been 
reached  by  construction.  The  constitutions  of  a few  states  contain  pro- 
visions which  expressly  make  the  question  of  what  constitutes  a 
public  use  a question  for  the  courts.81  The  question  of  the  propriety 
of  delegating  the  power  of  eminent  domain  is  for  the  legislative 
branch.82  The  question  of  the  necessity  for  a particular  taking  and 
the  question  of  the  amount  of  land  needed  is,  in  the  first  instance, 
for  the  condemning  authority,  which  is  vested  with  a relatively  wide 
discretion,  but  its  judgment  is  subject  to  review  by  the  courts  for  an 
abuse  of  discretion.83  The  questions  of  necessity  are  not  for  the 
jury.  The  constitutions  of  Illinois  have  never  provided  that  the  ne- 


77  Childs  v.  Chicago,  279  111.  623  (1917);  Bond  v.  Penn.  Co.  171  111.  508  (1898); 
Stetson  v.  C.  R.  R.  Co.,  75  111.  74  (1874);  Doane  v.  Lake  St.  El.  Ry.  Co.,  165 
HI.  510  (1897);  Aldis  v.  Union  El.  Ry.  Co.,  203  111.  567  (1903). 

78  McElroy  v.  Kansas  City,  21  Fed.  257;  Brown  v.  Seattle,  5 Wash  35; 
Searle  v.  Leod,  10  S.  D.  312;  Sala  v.  Pasadena,  162  Calif.  714;  Donovan  v. 
Albert,  11  N.  D.  289;  Delaware  Co.  Appeal.  119  Pa.  159. 

79  Doane  v.  Lake  St.  El.  Ry.,  165  111.  510  (1897). 

80  Story  v.  N.  Y.  El.  Ry.  Company,  90  N.  Y.  122. 

81  Provisions  of  this  character  are  to  be  found  in  the  constitutions  of  Ari- 
zona, Colorado,  Mississippi,  Missouri,  Washington,  Oklahoma. 

83  Chicago  v.  Lehman,  262  111.  468  (1914). 

83  Chicago  v.  Lehman,  262  111,  468  (1914);  Depue  v.  Banschbach,  273  111 
574  (1916). 


472 


cessity  of  a proposed  taking  should  be  determined  by  any  authority 
other  than  the  legislature  and  the  condemning  authority,  although 
in  the  convention  of  1869-7084  the  majority  of  the  committee  on  roads 
reported  in  favor  of  a provision  which  required  the  determination 
of  the  necessity  for  the  taking  of  land  for  private  roads  to  be  by 
jury.  A few  states  have  provided,  however,  that  in  certain  cases 
the  jury  shall  determine  the  necessity  for  a particular  taking.85  The 
fixing  of  the  amount  of  compensation  is  in  Illinois  for  the  jury 
subject  to  review  by  the  courts  as  in  all  other  jury  cases,  except  in 
takings  by  the  state,  where  other  agencies  may  be  authorized  by  the 
general  assembly  to  determine  the  amount  of  compensation. 


The  guaranty  of  jury  trial.  Trial  by  jury  on  issues  of  com- 
pensation in  condemnation  cases  was  not  guaranteed  by  the  consti- 
tutions of  1818  and  1848.  The  Bill  of  Rights  of  the  constitution  of 
1818  did  provide,  “That  the  right  of  trial  by  jury  shall  remain  in- 
violate.” The  constitution  of  1848  continued  this  clause  with  the 
addition,  “and  shall  extend  to  all  cases  at  law  without  regard  to  the 
amount  in  controversy.”  In  accordance  with  the  rule  in  other  states 
this  general  provision  was  held  not  to  apply  to  proceedings  under 
the  eminent  domain  clause,  because  a jury  was  not  guaranteed  at 
common  law  in  condemnation  cases.86 

In  the  constitutional  convention  of  1869-70,  there  seems  to  have 
been  no  debate  on  the  question  of  providing  for  a jury  trial  in  con- 
demnation cases,  but  most  of  the  resolutions  pertaining  to  eminent 
domain  contained  this  requirement.  In  some  instances  the  resolu- 
tion called  for  a jury  of  freeholders.  As  finally  adopted  the  pro- 
vision read : “Such  compensation,  when  not  made  by  the  state  shall 

be  ascertained  by  . a jury  as  shall  be  prescribed  by  law.”  This  pro- 
vision is  self-executing.87 

The  guaranty  of  jury  trial  on  issues  of  compensation  is  far 
from  being  a universal  provision.  It  is  found  in  the  constitutions 
of  Arkansas,  Arizona,  California,  Colorado,  Florida,  Iowa,  Mary- 
land, Missouri,  North  Dakota,  Ohio,  South  Carolina,  South  Dakota. 
Washington,  and  West  Virginia.  A jury  is  guaranteed  in  cases  of 
appeals  from  the  findings  of  some  statutory  tribunal  in  Alabama, 
Kentucky,  Oklahoma,  Pennsylvania. 

In  takings  by  a state  or  its  agents  a jury  is  guaranteed  in  AF 
bama,  Arkansas,  Colorado,  Florida,  Iowa,  Kentucky,  Maryland  (ex- 
cept in  Baltimore),  Ohio,  Oklahoma  and  Pennsylvania.  In  states 
where  there  is  no  constitutional  requirement  of  a jury  trial  it  is 
not  common  to  provide  for  a jury  by  statute. 

84  Debates,  p.  713. 

85  Michigan  Art.  XIII,  Secs.  1 and  2,  applies  to  all  cases  except  when  made 
by  the  state.  Wisconsin  Art.  XI.  sec.  2.  limits  to  taking’s  by  municipal  cor- 
porations. New  York  Art.  1.  Sec.  7.  and  Montana  Art.  TIT.  Sec.  15.  limit  the 
provision  to  takings  for  private  roads. 

88  Johnson  v.  J.  & C.  R.  R.  Co.,  23  111.  202  (1859). 

87  Mitchell  v.  R.  R.  Co..  08  111.  286  (1873). 


473 


The  constitution  of  1870  expressly  exempts  the  state  from  the 
guaranty  of  jury  trials.  The  fixing  by  commissioners  of  compensa- 
tion to  owners  of  land  taken  for  the  state  house  was  assumed  to  be 
proper  in  People  v.  Stuart.88  The  Attorney  General  rendered  an 
opinion  that  an  armory  commission  might  have  exercised  the  power 
of  eminent  domain  without  a jury  had  the  general  assembly  so  provided 
but  that  since  it  did  not  so  provide,  a jury  was  required  by  the  general 
eminent  domain  act.89  The  provision  exempting  the  state  from  the 
guaranty  of  jury  trial  has  been  said  to  extend  to  all  takings  by  the 
state  in  its  corporate  capacity.  The  Department  of  Public  Works 
and  Buildings  was  likewise  said,  by  the  Attorney  General,90  to  have 
power  to  take  lands  without  the  intervention  of  a jury. 

A provision  exempting  the  state  from  jury  trial  is  found  in  the 
constitution  of  New  York,  but  its  effect  is  not  the  same  because  the 
section  in  that  state  does  not  guarantee  a jury  trial  in  any  case. 

The  constitutional  guaranty  of  jury  trial  has  been  held  to  ren- 
der void  a section  of  the  drainage' act  of  1879  which  provided  that 
commissioners  might  determine  compensation  in  lieu  of  the  jury 
when  the  court  so  ordered.91  But  a statute  has  been  held  consti- 
tutional which  makes  the  finding  of  the  commissioners  prima  facie 
evidence  as  to  the  amount  of  compensation.92  The  provision  in  the 
drainage  act  of  1879  which  authorized  the  court  to  empanel  a “jury” 
of  twelve  men  and  to  direct  them  to  examine  the  land,  to  make  out 
an  assessment  roll  and  to  grant  a hearing  on  objections  after  the 
completion  of  the  assessment  of  damages  and  benefits  was  held  un- 
constitutional,93 because  the  hearing  thus  provided  for  was  not  the 
kind  of  hearing  guaranteed  by  the  constitution.  This  body  of  twelve 
men,  functioning  in  this  manner,  was  not  a jury.  But  it  has  been 
held  that  a jury  of  six  men  in  justice  of  the  peace  courts,  under 
the  specific  authorization  of  Art.  II,  Sec.  5 of  the  constitution,  may 
properly  determine  compensation,  because  the  term  “jury”  as  used 
in  the  eminent  domain  clause  includes  any  kind  of  jury  recognized 
by  the  constitution,  and  is  not  confined  to  that  kind  of  jury  which 
is  guaranteed  at  common  law  because  a trial  by  jury  was  never  guar- 
anteed at  common  law  in  eminent  domain  cases.94 

There  have  been  objections  to  the  jury  provision  in  other  states, 
particularly  in  condemnation  proceedings  instituted  by  municipalities. 
It  is  stated  that  trials  are  thereby  delayed  and  prolonged,  that  the 
expense  is  increased  and  that  the  verdicts  are  not  just  to  the  city. 

The  state  of  New  York  in  1913  added  an  amendment  providing 
that  compensation  might  be  fixed  “by  the  supreme  court  with  or 
without  a jury,  but  not  with  a referee  * * *”  Concerning  this 

provision  it  was  said : 


88  97  111.  123  (1880). 

89  Opinions  of  the  Attorney  General.  1914,  p.  153. 

90  Opinions  1917-18,  p.  729. 

91Juvinall  v.  Jamesburg  Drainage  District.  204  111.  106  (1903). 

92  Chicago,  T.  T.  R.  R.  Co.  v.  Chicago,  217  111.  343  (1905). 

93  Wabash  R.  R Co.  v.  Coon  Run  Drainage  District,  194  HI.  310  (1901), 

94  McManus  v.  McDonough,  107  111.  95  (1883), 


474 


“What  is  wanted  to  secure  justice  to  the  owner  and  the  city 
and  expedition  is  the  selection  of  suitable  men  who  shall  sit  alone, 
and  as  far  as  possible  do  nothing  else.  We  have  tried  to  accom- 
plish this  result  in  the  state  of  New  York  by  so  amending  the  con- 
stitution as  to  provide  that  the  Supreme  Court  may  make  the  awards 
for  land  taken  for  public  use.  We  anticipate  that  one  or  more  judges 
will  be  assigned  to  try  cases  and  perhaps,  also  appeals  from  the 
Tax  Commissioners  on  assessment  cases.  It  would  be  an  ideal  con- 
dition if  certain  judges  devoted  themselves  exclusively  to  these  cases, 
trying  some  cases  where  the  interest  of  the  city  is  in  a high  valuation, 
and  other  cases  where  the  interest  of  the  city  is  in  a low  valuation.”95 
The  consitutions  of  Illinois  have  not  guaranteed  a jury  trial  on 
issues  of  necessity  for  a particular  taking.  In  the  convention  of  1869- 
70,  proposed  resolutions,  relating  to  the  exercise  of  the  power  of  emi- 
nent domain  by  corporations  and  relating  to  the  taking  of  land  for 
private  roads,  contained  provisions  guaranteeing  trial  by  jury  on  this 
issue,  but  these  proposals  were  not  adopted.96  The  constitutions  of 
a few  states  guarantee  a jury  trial  on  the  issue  of  the  necessity  for 
the  taking.97 


Condemnation  of  land  for  roads  for  public  and  private  use. 

It  is  generally  held  that  the  power  of  eminent  domain  does  not 
extend  to  the  taking  of  land  for  private  roads,  because  the  taking 
is  for  private  and  not  a public  use.  This  was  the  law  in  this - state 
prior  to  the  adoption  of  the  constitution  of  1870.98 

The  constitutions  of  1818  and  1848  contained  no  provision  ex- 
pressly authorizing  such  takings.  In  the  debates  of  1869-70  this 
matter  was  the  subject  of  some  discussion.99  The  majority  of  the 
committee  on  roads  reported  in  favor  of  a provision  authorizing 
the  opening  of  private  roads,  the  necessity  therefor  and  the  amour' 
of  damages  to  be  ascertained  by  a jury  of  freeholders.  A minong 
of  the  committee  opposed  this  resolution  upon  the  grounds  that 
property  should  never  be  taken  for  private  use ; and.  that  it  was  U 
conflict  with  the  fourteenth  amendment  to  the  constitution  of  the 
United  States.  The  minority  recommended  the  resolution  as  it  appear- 
in  Art.  IV,  Sec.  30,  with  the  exception  that  the  word  “maintaining” 
was  dropped  and  the  word  “opening”  inserted.  The  minority  wer- 
of  the  opinion  that  the  section,  in  this  form,  placed  such  roads  “upon 
the  same  ground  that  the  courts  have  put  railroads,  for  public  as  well 
as  private  use.” 


95  See  Report  of  Conference  on  City  Planning1,  1912,  p.  95  for  a criticism 
of  the  jury  system  in  condemnation  cases.  Lawson  Purdy.  President  of  the 
Department  of  Taxes  and  Assessments,  New  York  City,  in  Proceedings  of  the 
Conference  on  City  Planning,  1911,  p.  120-121. 

96  Debates,  p.  713.  ^ 

97  Michigan  Art.  XIII,  Secs.  1 and  2.  does  not  apply  to  the  state.  Wis- 
consin, Art.  XI,  Sec.  2\  applies  to  takings  by  municipal  corporations.  New 
York,  Art.  L.  Sec.  7,  Montana,  Art.  Ill,  Sec.  15,  apply  to  takings  of  land 
for  private  roads. 

9S  Nesbit  v.  Trumbo,  39  111.  110  (1866), 

99  Debates,  p.  257. 


475 


As  finally  adopted  the  provision  read : “The  General  Assembly 

may  provide  for  establishing  and  opening  roads  and  cart  ways  con- 
nected with  a public,  road  for  private  and  public  use.” 

Similar  provisions  are  found  in  several  states.100  Legislation 
has  been  passed  in  Illinois  under  the  authority  of  this  section.101 


Condemnation  of  land  for  drainage  purposes.  The  constitu- 
tions of  1818  and  1848  did  not  contain  any  clause  expressly  authorizing 
the  condemnation  of  land  for  the  construction  of  drains  and  ditches, 
nor  was  any  act  passed  by  the  general  assembly  during  this  period 
which  squarely  presented  the  question  of  constitutionality  under  the 
general  eminent  domain  clause.  In  other  states  it  had  been  held  that 
land  could  be  condemned  under  general  eminent  domain  clauses  for  the 
purpose  of  draining  swamp  lands.102  The  public  purpose  was  found  in 
the  beneficial  effect  upon  public  health.  In  other  cases  similar  acts 
were  sustained  on  broader  grounds.  But  this  doctrine  was  not  uni- 
form. In  New  York  before  the  drainage  amendment  was  adopted  it 
was  held  that  such  an  act  would  not  be  valid  unless  the  project  could 
be  related  to  the  public  health.103 

In  the  convention  of  1869-70  the  drainage  question  came  up  quite 
early.104  A resolution  was  introduced  calling  upon  the  committee  on 
the  bill  of  rights  to  inquire  into  the  necessity  for  amending  the  consti- 
tution so  as  to  authorize  the  enactment  of  drainage  laws  applicable  to 
private  property.  The  question  was  not  debated  but  the  committee 
(doubtless  having  in  mind  the  decision  in  Nesbit  v.  Trumbo,105  which 
held  invalid  an  act  of  the  legislature  authorizing  the  condemnation  of 
land  for  private  rights  of  way  and  the  conflict  of  authority  on  this 
question  in  other  states)  reported  in  favor  of  inserting  such  a pro- 
vision. Accordingly  section  31  of  Art.  IV  was  inserted.  This  section 
provided:  “The  General  Assembly  may  pass  laws  permitting  the 

owners  or  occupants  of  land  to  construct  drains  and  ditches  for 
agricultural  and  sanitary  purposes  across  the  lands  of  others.” 

This  provision  was  limited  to  the  construction  of  drains  and 
ditches  for  the  two  purposes  specified.  Since  the  effect  of  the  clause 
was  to  operate  as  a limitation,  there  was  no  power  to  construct  levees 
as  independent  projects.  Furthermore,  the  general  assembly  could  not 
authorize  the  organization  of  drainage  districts  with  the  power  of  levy- 
ing special  assessments  because  Section  9 of  Article  IX  of  the  consti- 
tution limited  the  exercise  of  the  power  of  levying  special  assessments 
“to  cities,  towns,  and  villages.”  Legislation  attempting  to  authorize 
the  condemnation  of  land  for  levee  purposes,  and  the  levying  of  special 

100  Alabama,  Arizona,  Colorado,  Georgia,  Michigan,  Mississippi,  Missouri, 
Montana,  Oklahoma,  New  York.  Washington,  Wyoming.  Usually  the  road  is 
referred  to  as  a private  way  of  necessity,  occasionally  as  a right  of  way  or 
private  road,  or  a private  and  public  road. 

101  See  Hurd’s  R'.  S.  Ch.  121  Sec.  98. 

i°2  Tidewater  Co.  v.  Coster  18  N.  J.  Eq.  518. 

103  In  re  Ryers  72  N.  Y.  1. 

104  Debates,  p.  74. 

105  39  111.  110  (1866). 


476 


assessments  to  pay  for  the  improvement,  was  accordingly  held 
invalid.106 

In  the  year  following  this  decision  the  General  Assembly  proposed 
an  amendment  to  remedy  the  defects  in  section  31  of  Art.  IV,  which 
had  been  disclosed  by  the  decision  in  Updike  v.  Wright.  This  resolu- 
tion authorized  the  organization  of  levee  districts,  conferred  authority 
to  levy  special  assessments,  added  mining  purposes  to  those  of  agri- 
culture and  sanitation  contained  in  the  original  section,  and  amplified 
the  phraseology  generally.  The  proposed  amendment  was  adopted  at 
the  election  in  November,  1878.  This  section  now  provides : “The 

General  Assembly  may  pass  laws  permitting  the  owners  of  lands  to 
construct  drains,  ditches  and  levees  for  agricultural,  sanitary  or  min- 
ing purposes,  across  the  lands  of  others,  and  provide  for  the  organiza- 
tion of  drainage  districts,  and  vest  the  corporate  authorities  thereof 
with  power  to  construct  and  maintain  levees,  drains  and  ditches  and  to 
keep  in  repair  all  drains,  ditches  and  levees  heretofore  constructed  un- 
der the  laws  of  this  State,  by  special  assessments  upon  the  property 
benefited  thereby.107 

The  provisions  contained  in  the  general  eminent  domain  clauses 
apply  to  proceedings  under  this  section.108  Damage  caused  merely  by 
increasing  the  flow  of  natural  drainage  gives  no  right  to  compensa- 
tion.109 


Corporate  franchises  and  property.  Under  the  constitutions 

of  1818  and  1848  there  was  no  provision  expressly  authorizing  the 
taking,  under  the  power  of  eminent  domain,  of  corporate  franchises 
and  property.  In  the  convention  of  1869-70  there  seemed  to  have  been 
some  fear  that  the  general  eminent  domain  clause  would  not  authorize 
the  condemnation  of  corporate  properties.110  It  was  apparently  thought 
that  the  grant  of  a franchise  might  carry  with  it  an  obligation  not  to 
exercise  the  power  of  eminent  domain.  The  court  has  since  held,  in 
accordance  with  the  general  rule,  that  this  power  cannot  be  irrevocably 
bartered  away.  The  breach  of  an  agreement  not  to  exercise  the  power 
of  eminent  domain  is  not  an  impairment  of  the  obligation  of  a con- 
tract.111 But  the  following  provision  was  inserted : “The  exercise  of 
the  power  and  the  right  of  eminent  domain  shall  never  be  so  construed 
or  abridged  as  to  prevent  the  taking,  by  the  General  Assembly,  of  the 
property  and  franchises  of  incorporated  companies  already  organized, 
and  subjecting  them  to  the  public  necessity  the  same  as  of  individuals. 
The  right  of  trial  by  jury  shall  be  held  inviolate  in  all  trials  of  claims 
for  compensation,  when,  in  the  exercise  of  the  said  right  of  eminent 

106  Updike  v.  Wright.  81  111.  49  (187(5). 

i°7  Provisions  expressly  authorizing-  the  condemnation  of  land  for  drainage 
purposes  have  been  adopted  in  the  following  states:  Arizona,  Colorado,  Florida. 

Idaho,  Iowa,  Missouri,  Mississippi,  Montana,  New  Mexico,  New  York,  Okla- 
homa, South  Carolina,  Washington,  Wyoming. 

108  Wabash  R.  R.  v.  Coon  Run  Drainage  District.  194  111.  5110  (1901). 

109  C.  B.  & Q.  Ry.  Co.  v.  People,  212  111.  103  (1904),  200  U.  S.  561. 

119  See  Debates,  pages  262,  703,  713. 

111  Village  of  Hyde  Park  v.  Cemetery  Association,  119  111.  141,  (1886);  Long 
Island  Water  Supply  Co.  v.  Brooklyn,  168  U.  S.  685. 


477 


domain,  any  incorporated  company  shall  be  interested  either  for  or 
against  the  exercise  of  said  right.”112 

The  general  effect  of  this  constitutional  clause  was  the  subject  of 
examination  in  L.  S.  & M.  S.  Ry.  Co.  v.  C.  & W.  I.  R.  R.  Co.,113  where 
the  court  took  occasion  to  say : “The  power  of  eminent  domain  was 

conferred  upon  the  general  assembly  by  that  clause  which  vested  in 
that  body  the  legislative  power  of  the  state.  That  power  is  not  granted 
but  it  merely  recognized  by  the  state  by  Sec.  13  Art.  2 , and  the  pur- 
pose of  that  section  is  to  limit  and  regulate  its  exercise.  Sec.  14  of 
Art.  XI  was  inserted  out  of  an  abundance  of  caution.” 

This  section  is  also  spoken  of  as  “reinforcing”  Art.  II,  Sec.  13.114 

112  Art.  XI.  Sec.  14.  Similar,  provisions  are  found  in  the  Constitutions  of 
Alabama,  Arizona,  Arkansas,  California,  Colorado,  Georgia,  Idaho,  Kentucky, 
Mississippi,  Montana,  Nebraska,  New  Mexico,  North  Dakota,  South  Dakota,  Utah, 
Virginia,  Washington,  West  Virginia,  Wyoming. 

113  97  111.  506  (1881). 

114  Mitchell  v.  R.  R.  Co.  68  111.  286  (1873). 


478 


IV.  EXTENSION  OF  THE  POWER  OF  EMINENT 

DOMAIN. 


Types  of  constitutional  provisions  in  general.  In  recent  years 

a number  of  constitutional  provisions  have  been  adopted  which  ex- 
tend the  power  of  eminent  domain.  Uses  which  heretofore  were  not 
generally  regarded  as  public  have  by  this  means  become  public  uses. 
These  constitutional  provisions  fall  into  three  groups:  (1)  There  is 

a class  which  adds  new  functions  of  government  to  the  state  or  to 
its  subdivisions  but  which  does  not  expressly  confer  the  power  of 
eminent  domain  as  one  of  the  means  of  their  accomplishment.  The 
ultimate  effect,  however,  may  be  to  draw  the  power  of  eminent  do- 
main to  the  added  functions.  This  class  is  the  most  numerous.  (2)  In 
the  second  group,  the  sphere  of  government  is  extended  and  the  power 
of  eminent  domain  is  expressly  mentioned  as  one  of  the  means  of 
effectuating  the  new  purpose.  Amendments  falling  in  these  two  classes 
comprise  a wide  range  of  subjects:  conservation  of  natural  resources, 
forests,  reclamation  work,  internal  improvements,  municipal  owner- 
ship of  public  utilities,  state  insurance,  mining,  manufacture  of  cement, 
operation  of  grain  elevators  and  flour  mills,  sale  of  necessaries,  and 
building  of  homes.  (3)  In  the  third  class  of  amendments,  the  power  of 
eminent  domain  is  authorized  to  be  employed  in  a new  direction,  but 
for  a purpose  distinctly  incidental  to  the  accomplishment  of  other 
functions,  as  for  example  when  a city,  in  the  location  or  widening  of 
streets  or  in  the  construction  of  public  works,  seeks  to  condemn  land 
lying  outside  the  proposed  improvement  for  the  purpose  of  further 
insuring  the  success  of  the  improvement,  or  for  other  collateral  ob- 
jects. The  properties  taken  are  not  directly  and  continuously  used  in 
the  project  but  are  sold  after  the  incidental  benefit  arising  from  their 
temporary  possession  has  been  realized. 

The  first  and  second  classes  of  constitutional  amendments  simply 
expand  the  power  of  eminent  domain.  Constitutional  provisions  of 
the  third  class  likewise  extend  the  power  of  eminent  domain  but  the 
difference  in  the  objects  sought  to  be  accomplished  thereby  has  caused 
the  introduction  of  the  term  “excess  condemnation”  as  descriptive  of 
this  additional  authority. 


Constitutional  provisions  extending  state  functions.  Consti- 
tutional provisions  recently  adopted,  which  extend  state  functions  but 
which  do  not  expressly  confer  the  power  of  eminent  domain  with 


V 


479 

respect  to  such  new  functions,  relate  either  to  the  conservation  of 
natural  resources  or  to  the  conduct  of  some  business  enterprise. 

Constitutional  provisions  authorizing  the  creation  of  forest  pre- 
serves have  been  in  force  for  some  time.1  In  the  absence  of  a con- 
stitutional provision  authorizing  the  condemnation  of  land  for  the 
purpose  of  creating  a forest  preserve,  a statute  which  confers  this 
power  probably  would  be  constitutional.  No  case  has  been  found 
which  directly  presents  this  question  but  the  purpose  might  be  re- 
garded as  analogous  to  that  of  public  parks.  It  has  been  held  in  Illi- 
nois that  it  is  proper  to  employ  the  taxing  power  to  maintain  forest 
preserves.2 

The  broader  policy  of  conservation  of  all  natural  resources 
has  been  adopted  in  some  states.  The  constitution  of  Idaho  declares 
that  the  use  of  lands  for  the  development  of  the  natural  resources  of 
the  state  or  the  preservation  of  the  health  of  the  inhabitants  shall  con- 
stitute a public  use.  By  an  amendment  adopted  in  1918,  Massachusetts 
authorizes  the  condemnation  of  land  for  the  conservation  of  natural 
resources.  In  1919  Texas  provided  for  the  conservation  of  natural 
resources  and  the  creation  of  conservation  districts.  The  preservation 
and  distribution  of  water,  irrigation,  reclamation,  drainage,  forests, 
water  and  hydro-electric  power  were  expressly  referred  to  as  being 
within  the  objects  of  the  Texas  amendment.  The  power  of  eminent 
domain  was  not  expressly  mentioned  in  the  Texas  amendment.  South 
Dakota  has  recently  authorized  the  state  to  invest  its  funds  in,  and 
to  lend  its  credit  to,  corporations  organized  for  the  development  of 
natural  resources. 

The  reclamation  of  privately  owned  swamp  and  arid  land  is  not 
usually  undertaken  by  the  state  directly,  but  express  constitutional 
provisions  are  common  which  authorize  quasi-public  corporations  to 
condemn  land  for  such  purposes.  There  is  but  slight  evidence  of  a 
desire  to  change  this  policy.  Within  certain  limits,  not  clearly  marked 
out,  the  state,  under  general  constitutional  provisions,  may  condemn, 
reclaim  and  sell  land.  The  condemnation  and  reclamation  of  the 
Back  Bay  flats  district  in  Boston  harbor  by  the  state  was  one  of  the 
most  extensive  of  such  reclamation  projects.  The  statute  which 
authorized  this  work  was  held  constitutional  under  the  general  emi- 
nent domain  clause,3  but  its  validity  was  made  more  certain  because 
of  its  close  relation  to  the  promotion  of  commerce.4  Condemnation  of 
land  on  a broad  scale  in  furtherance  of  a definite  policy  of  state  re- 
clamation work  could  scarcely  be  attempted  in  the  absence  of  express 
constitutional  provision.5  The  legislature  of  the  state  of  Washington 
at  its  last  session  proposed  an  amendment  to  be  voted  on  in  1920  which 
declares  that  the  taking  of  private  property  by  the  state  for  land  re- 
clamation and  settlement  purposes  shall  be  a public  use.  An  amend- 
ment which  would  have  authorized  the  state  to  contract  indebtedness 


1 Constitutional  provisions  relating  to  forest  preserves  will  be  found  in  Ohio, 

New  York,  Wisconsin,  Washington.  Montana,  Idaho  and  Arizona. 

3  Perkins  v.  Commissioners  of  Cook  Co.  271  111.  449  (1916). 

3 Moore  v.  Sanford.  151  Mass.  285  (1890). 

4 Opinion  of  the  Justices.  204  Mass.  607. 

5 Cooley,  Constitutional  Limitations  (7th  Ed.)  Sec.  766. 


480 


for  the  reclamation  of  wild  lands  failed  of  adoption  in  Arizona  in 
1914;  and  a similar  proposal  increasing  the  state  debt  limit  for  building 
roads,  constructing  irrigation  and  power  projects  and  developing  un- 
tilled lands,  was  rejected  in  Oregon  in  the  same  year. 

A few  constitutional  provisions  empower  the  state  to  enter  gener- 
ally into  the  construction  of  works  of  internal  improvement.  In 
some  states  the  power  to  construct  such  works  is  prohibited.  But 
the  construction  of  public  roads  and  the  improvement  of  lands  donated 
to  the  state  are  commonly  excepted  from  the  prohibition.  In  this  con- 
nection mention  should  be  made  of  the  act  passed  at  the  1919 
session  of  the  General  Assembly  of  Illinois  which  grants  power  to  the 
Department  of  Public  Works  and  Buildings : “To  acquire  by  condem- 
nation under  the  eminent  domain  laws  of  this  state,  lands,  mines, 
quarries,  gravel  beds,  clay  beds,  mineral  deposits,  or  other  property 
for  procuring  materials  or  producing  manufactured  products  neces- 
sary in  the  construction  and  maintenance  of  public  improvements  by 
the  state  of  Illinois ; 

“To  lease,  purchase,  construct,  maintain  and  operate  lands,  mines, 
plants  and  factories  for  the  production  of  any  raw  materials  or  manu- 
factured products  necessary  in  the  construction  and  maintenance  of 
public  improvements  by  the  state  of  Illinois.”6  Constitutional  amend- 
ments have  been  adopted  in  North  Dakota  and  in  South  Dakota  which 
authorize  the  state  to  engage  in  works  of  internal  improvement.7 
Wyoming  permits  the  state  to  engage  in  works  of  internal  improve- 
ment when  authorized  by  two-thirds  vote  of  the  people. 

The  power  of  eminent  domain  has  been  employed  in  European 
countries  for  the  purpose  of  abating  insanitary  areas,  and  while  it 
has  been  discussed  to  some  extent  in  this  country,  this  policy  has  not 
been  acted  upon.  It  is  unlikely  that  the  courts  would  sustain,  under 
the  general  eminent  domain  clause,  a statute  which  authorized  the 
condemnation  of  properties  for  the  purpose  of  changing  the  character 
of  the  neighborhood.8  The  nearest  approach  to  a policy  of  this  char- 
acter is  that  contained  in  the  Massachusetts  amendment  of  1915  which 
authorizes  the  state  to  take  land  for  the  purpose  of  relieving  con- 
gestion and  for  providing  homes  for  citizens.  A city  may,  of  course, 
cut  wide  thoroughfares  through  an  insanitary  area ; and  in  states 
which,  by  recent  amendment,  permit  the  condemnation  of  land  bor- 
dering upon  an  improvement  for  the  purpose  of  protecting  it,  a much 
greater  portion  of  the  district  could  be  changed.  The  employment  of 
the  power  of  eminent  domain  to  abate  slum  districts  has  been  dis- 
cussed and  proposed,9  but  the  great  expense  and  the  likelihood  that 
the  abatement  of  one  area  would  merely  cause  its  re-appearance  else- 
where has  led  others  to  oppose  its  use.10 


0 Illinois  Laws,  1919,  p.  712. 

7 South  Dakota,  1918,  authorizes  the  State  to  engage  in  works  of  internal 
improvements  and  to  lend  its  credit  to  corporations  for  this  purpose.  North 
Dakota,  1918,  authorizes  the  state  or  any  of  its  subdivisions  to  make  internal 
improvements  or  to  engage  in  any  industry  not  prohibited. 

8 Salisbury  Land  Co.  v.  Commonwealth.  215  Mass.  371. 

9 See  Proceedings  of  Conference  on  City  Planning.  1912.  p.  100. 

10  Dewsnup,  Housing  Problems,  p.  233;  Swan,  Excess  Condemnation,  p.  481. 


481 


Constitutional  provisions  in  several  states  expressly  authorize  the 
condemnation  and  operation  of  public  utilities  by  municipalities.  With 
respect  to  the  power  of  a city  to  condemn  existing  public  utilities, 
it  has  been  held  in  New  York  that  a statute  enacted  under  the  gen- 
eral eminent  domain  clause  justifies  such  a taking.11  The  power 
to  condemn  public  utilities  has  been  conferred  upon  Illinois  cities  by 
an  act  of  1913. 12  The  power  to  acquire  harbors,  canals,  wharves, 
levees,  and  all  appropriate  harbor  structures,  elevators  and  ware- 
houses was  delegated  to  municipalities  in  the  same  year.13  Little 
doubt  could  be  raised  as  to  the  constitutionality  of  the  main  features 
of  these  acts,  but  objections  might  be  raised  with  respect  to  the  pro- 
vision found  in  each  which  authorizes  the  city  to  lease  to  private  cor- 
porations for  a limited  number  of  years  the  utilities  taken  over  by 
the  city  by  condemnation  proceedings.  While  the  courts  elsewhere 
allow  the  condemnation  of  properties  in  fee  and  their  ultimate  sale 
upon  the  abandonment  of  the  undertaking,  they  have  refused  in  other 
types  of  cases  to  permit  the  taking  of  land  from  a private  person  to  be 
immediately  sold  or  leased  to  another  private  person.  A constitutional 
provision  in  Ohio  expressly  authorizes  the  condemnation  and  leasing 
of  public  utilities  by  municipalities.  Other  provisions  relating  to  the 
acquisition  and  operation  of  public  utilities  are  to  be  found  in  Arizona, 
California,  Colorado,  Louisiana,  Michigan,  Missouri,  Oregon  and 
South  Carolina. 

The  power  of  eminent  domain  under  general  eminent  domain 
clauses  cannot  be  employed  to  aid  an  enterprise  which  is  not 
invested  with  a public  interest,  nor  to  aid  the  state  or  its  sub- 
divisions, when  such  enterprises  are  conducted  by  them.14  In  a 
number  of  states  there  exist  constitutional  prohibitions  upon  the 
granting  of  aid  to  private  enterprises  by  the  state  or  municipalities 
or  both.  The  extension  of  the  functions  of  government  in  some 
states  to  include  the  conduct  of  business  enterprises  may  have 
the  effect  of  expanding  the  power  of  eminent  domain.  In  North 
Dakota  the  state  has  been  given  the  power  by  constitutional 
amendment  of  1918  to  engage  in  any  private  enterprise  which  is 
not  expressly  prohibited  by  the  constitution.  The  state  of  Okla- 
homa may  engage  in  any  occupation  or  business  except  agriculture. 
In  Arizona  the  state  and  municipal  corporations  have  the  right 
to  engage  in  any  industrial  pursuit.  Tn  other  instances  the  power 
is  conferred  upon  the  state  to  engage  in  certain  specified  enter- 
prises, such  as  providing  for  state  insurance  against  loss  by  hail 
in  North  Dakota  and  in  South  Dakota,  engaging  in  mining  and 
the  manufacture  of  cement  in  South  Dakota,  in  the  establishment 
and  operation  of  grain  elevators  and  flour  mills,15  and  in  supplying 
necessaries  of  life  in  time  of  war  or  other  emergency.16  An  amend- 

11  In  re  City  of  'Brooklyn.  143  N.  Y.  596.  affirmed  166  U.  S.  685. 

12  Hurd’s  R.  S.  1-917,  Chap  111A,  Secs.  87-101. 

13 Hurd’s  R.  S.  1917,  Chap.  24,  Sec.  70  et  seq. 

14  School  v.  Coal  Co.,  118  111.  427  (1887)  (mining).  Banker  v.  Grand  Rapids, 
142  Mich.  687,  (state  cannot  condemn  land  for  coal  yard  or  for  a plumbing 
establishment).  Keen  v.  Wavcross,  10  Ga.  588;  Mather  v.  Ottawa,  114  111.  659' 
(1885). 

13  South  Dakota;  North  Dakota, 

13  Massachusetts  1917 


482 


ment  was  adopted  in  Massachusetts  in  1915  which  authorized  the 
condemnation  of  land  to  relieve  congestion  and  to  provide  homes.17 
At  its  1919  session  the  legislature  of  Kansas  proposed  an  amend- 
ment to  be  voted  on  in  1920  which  authorizes  the  creation  of  a 
fund  to  encourage  the  purchase  of  farm  homes.18  A proposal  to 
levy  a land  tax  to  establish  a home-maker’s  fund  was  defeated  in 
Oregon  in  1916. 


Constitutional  provisions  expressly  extending  power  of  eminent 
domain.  Recently  adopted  constitutional  provisions  which  extend 
the  use  of  eminent  domain  relate  to  the  conservation  of  natural 
resources,  to  the  acquisition  of  public  utilities  by  municipalities 
and  to  housing  projects.  The  constitutions  of  Ohio  and  Wisconsin 
authorize  the  taking  of  land  for  forest  preserves.  The  conserva- 
tion of  natural  resources  is  declared  to  be  a public  use  in  the  con- 
stitution of  Idaho,  and  an  amendment  in  Massachusetts  in  1918 
authorizes  the  condemnation  of  land  for  the  conservation  of  natural 
resources.  A proposal,  to  be  voted  on  in  Washington  in  1920,  pro- 
vides for  the  taking  of  land  for  reclamation  and  settlement  pur- 
poses. The  constitutions  of  several  states  authorize  the  con- 
demnation and  operation  of  public  utilities  by  cities.  An  amend- 
ment adopted  in  Massachusetts  in  1915  authorizes  the  condemna- 
tion of  land  to  relieve  congestion  of  population  and  to  provide 
homes  for  citizens. 


Excess  condemnation — general  statement.  The  problem  which 

is  sought  to  be  solved  by  excess  condemnation  is  primarily  a 
problem  of  the  large  city.  The  citv  desires- a greater  control  over 
the  character  of  the  neighborhood  surrounding  public  improve- 
ments, such  as  newly  opened  or  widened  streets,  public  parks  or 
buildings,  for  the  purpose  of  protecting  such  improvements  from 
undesirable  structures  and  for  the  more  general  objects  of  stabiliz- 
ing real  estate  values  and  insuring  the  proper  development  of  the 
district. 

First,  it  is  urged  that  the  city  be  given  power  to  condemn  the 
small  remnants  of  lots  which  are  left  as  a result  of  the  location  or 
widening  of  streets,  and  in  addition,  the  power  to  condemn  a sufficient 
amount  of  land  which,  when  added  to  the  remnant,  will  make  suit- 
able building  sites.  The  city  is  also  to  be  authorized  to  sell  the  lot. 
Second,  it  is  proposed  that  the  city  be  given  power  to  condemn  con- 
siderable areas  adjoining  a public  improvement  for  the  purpose  of  re- 
selling them  under  proper  restrictions  designed  to  protect  the  improve- 
ment and  to  control  the  character  of  the  buildings  in  the  section. 

17  This  action  followed  an  opinion  of  the  Justices  of  the  Supreme  Court, 
211  Mass.  624.  that  such  a proiect  was  not  a public  purpose.  See  also,  Salisbury 
Land  Co.  v.  Commonwealth,  215  Mass.  371,  (1913), 

19  Kansas  Session  Laws,  1919, 


483 


Third,  it  is  proposed  that  the  city  be  authorized  to  condemn  the  area 
surrounding  an  improvement  and  to  sell  the  same  for  the  purpose  of 
recouping  the  cost  of  the  improvement. 


Constitutionality  of  statutes  auth6rizing  excess  condemnation. 

The  courts  of  the  United  States,  with  practical  unanimity,  have  held 
unconstitutional  under  general  eminent  domain  clauses,  statutes  which 
authorize  the  condemnation  of  more  land  than  is  necessary  for  a pro- 
posed improvement,  such  excess  to  be  later  sold  or  leased.  Such  a 
taking  is  held  not  to  be  for  a public  purpose.  As  early  as  1824  the 
Supreme  Court  of  South  Carolina  took  this  position  with  reference 
to  a statute  which  authorized  the  taking  and  resale  of  lot  remnants.19 
A few  years  later  a similar  statute  of  New  York  was  held  unconsti- 
tutional.20 These  two  cases  had  the  effect  of  settling  the  constitu- 
tional question,  at  least  for  a time.  No  statutes  of  like  character  are 
found  until  1870,  at  which  time  New  Jersey  passed  an  act  author- 
izing the  replotting  of  land  affected  by  an  improvement  so  as  to  absorb 
the  remnants.21  The  act  was  never  tested.  In  1904,  a remnant  act 
was  passed  in  Massachusetts.22  A similar  one,  but  with  broader 
powers  was  enacted  in  Ohio  in  the  same  year,  followed  by  like  legis- 
lation in  Virginia  in  1906,  Connecticut  in  1907,  Pennsylvania  in  1907, 
Maryland  in  1908,  Wisconsin  in  1909,  New  York  in  1911,  and  Oregon 
in  1913. 

The  Maryland  act  came  before  the  court  in  1911,  and,  while  the 
decision  is  not  a square  holding  against  its  constitutionality,  for  the 
point  was  not  definitely  in  issue,  the  language  of  the  opinion  points 
strongly  in  that  direction.23  Two  years  later,  the  Pennsylvania  statute 
was  declared  unconstitutional.24  This  statute  authorized  the  condem- 
nation and  resale  under  building  restrictions  of  land  within  200  feet 
of  a proposed  parkway.  The  object  of  the  taking  was  to  preserve  the 
improvement.  There  was  a slight  intimation  by  the  court  that  the 
taking  of  an  easement  for  such  a purpose  might  not  be  objectionable, 
but  the  taking  of  land  to  be  resold  possibly  to  others  was  held  to 
promote  a private  purpose  and  was  therefore  void.  Proposed  legis- 
lation of  the  same  nature  was  for  like  reasons  said  to  be  unconstitu- 
tional, in  opinions  of  the  justices  of  Massachusetts,  rendered  to  the 
legislature  in  1910. 25  In  its  first  opinion  the  court  took  occasion  to 
remark  that  the  lot  remnant  act  might  be  sustained,  but  they  stated 
that  this  legislation  went  “to  the  very  verge  of  constitutionality”  and 
that  it  could  apply  only  when  the  particular  remnant  was  too 


19  Dunn  v.  City  of  Charleston,  Harpers  Law  Reports,  189. 

20  In  re  Albany  street  11  Wend.  149,  (1834);  Emery  v.  Conner,  3 N.  T. 
511,  (1850). 

21  New  Jersey  Laws,  Chap.  117  (1870). 

22  Mass.  Laws  (1904). 

23  Bond  v.  Baltimore,  116  Md.  683,  (1911).  See,  also,  Philadelphia  etc.  R. 
Co.  v.  Baltimore,  121  Md.  504. 

21  Mutual  Life  Insurance  Co.  v.  Philadelphia,  242  Pa.  St.  47  (1913). 

25  Opinions  of  the  Justices,  204  Mass.  604,  204  Mass.  616. 


484 


small  to  be  of  any  practical  value  and  even  then  only 
upon  an  adjudication  that  the  public  convenience  and  necessity  re- 
quired the  taking.  With  the  exception  of  this  opinion,  no  authority 
has  been  found  which  is  favorable  to  the  constitutionality  of  a statute 
authorizing  excess  condemnation  under  a general  eminent  domain 
clause.  Such  judicial  authority  as  there  is,  is  in  accord  in  indicating 
that  if  municipalities  are  to  be  given  the  power  to  condemn  land  which 
is  not  to  be  used  for  the  purposes  of  the  improvement,  but  is  to  be 
resold  for  any  collateral  object  whatsoever,  such  power  must  be  con- 
ferred by  express  constitutional  provision.  The  statutes  in  other 
states  have  not  been  before  the  courts,  those  interested  in  their  use 
apparently  acquiescing  in  the  prevailing  judicial  opinion. 

The  question  here  discussed  has  never  been  raised  in  the  courts 
of  Illinois,  but  in  a case20  decided  in  1866  the  Supreme  Court  of  Illi- 
nois, in  holding  that  a statute  which  authorized  the  condemnation  of 
land  for  private  rights  of  way  was  unconstitutional,  took  occasion  to 
quote  with  approval  from  the  Albany  Street  case27  which  held  the 
New  York  lot  remnant  act  void.  There  is  no  reason  to  suppose  that 
the  courts  of  this  state  would  hold  such  an  act  valid.  Under  the 
existing  eminent  domain  clause  it  is  definitely  outside  the  scope  of 
legislative  power  to  authorize  municipalities  to  condemn  and  resell 
lot  remnants  or  take  and  resell  lands  for  the  purpose  of  protecting  an 
improvement  or  for  improving  the  character  of  the  neighborhood,  or 
for  purposes  of  recouping  the  cost  of  the  improvement. 

It  has  sometimes  been  said  that  a statute  which  would  authorize 
the  condemnation  of  easements  for  the  purpose  of  protecting  an  im- 
provement or  for  improving  the  character  of  the  neighborhood  would 
be  constitutional,  because  this  does  not  involve  excess  condemnation 
but  only  an  extension  of  the  power  of  eminent  domain,  the  authority 
to  resell  after  the  taking  being  eliminated.  But  little  authority  can  be 
adduced  in  support  of  this  position.  The  case  usually  referred  in  this 
connection  is  that  of  Attorney  General  v.  Williams.28  In  this  case 
an  act  of  the  General  Court  of  Massachusetts  which  authorized  the 
condemnation  of  easements  of  light  and  air  above  the  height  of  ninety 
feet  surrounding  Copley  Square  in  the  city  of  Boston  was  held  con- 
stitutional. The  limitation  of  the  height  of  buildings  is,  however, 
recognized  everywhere  as  a legitimate  exercise  of  the  police  power, 
and  the  Massachusetts  court  intimated  in  this  case  that  payment  of 
compensation  would  not  have  been  necessary.  No  case  has  been 
found  which  discusses  the  broad  question  whether  a statute  may  con- 
stitutionally authorize  a city  to  condemn  easements  in  the  form  of 
general  building  restrictions  and  annex  them  to  public  improvements. 
The  General  Assembly  of  Illinois,  however,  has  acted  upon  the  as- 
sumption that  such  an  act  is  constitutional.29 

20  Nesbitt  v.  Trumbo,  39  111.  110. 

2T  11  Wend.  149  (1834). 

28  174  Mass  476,  178  Mass.  330,  188  U.  S.  491  (1899);  Walter  L.  Fisher, 
Plan  of  Chicago  p.  148. 

29  Sec.  3 of  Art.  IV,  Act  of  1915,  providing  for  the  consolidation  of  the 
local  governments  of  Chicago  authorizes  the  condemnation  of  easements  to 
control  the  surroundings  of  parks.  This  act  has  never  gone  into  effect,  because 
dependent  upon  a favorable  popular  vote  in  Chicago. 


485 


Scope  of  the  police  power.  City  plans,  rather  generally,  seek 
an  adequate  control  over  the  location  and  regulation  of  all  offensive 
industries,  of  advertising  signs,  and  of  ordinary  business  establish- 
• ments.  Buildings  are  to  be  safely  constructed,  limited  to  certain 
heights,  and  to  certain  proportions  of  the  lot,  and  constructed  in  ac- 
cordance with  established  building  lines.  The  display  of  advertising 
signs  is  to  be  restricted.  In  planning  for  undeveloped  areas  it  is 
sought  to  prohibit  the  building  within  the  lines  of  officially  mapped 
streets.  A thoroughgoing  zoning  system  is  sought.  To  what  extent 
are  these  objects  attainable  under  the  police  power  without  express 
constitutional  authority  ? 

The  police  power  is  adequate  to  compel  the  safe  construction  of 
buildings,30  and  to  exclude  from  certain  districts  any  business  which 
is  a nuisance  and  many  which  are  not  nuisances  per  se,  such  as  public 
wash-houses  and  the  like.31  In  the  matter  of  excluding  business  es- 
tablishments from  specified  areas,  the  courts  probably  have  not  gone 
farther  than  in  the  case  of  Ex  parte  Hadacheck.32  In  this  case  an 
ordinance  was  sustained  which  excluded  brick  yards  from  residential 
districts.  Retail  stores  and  similar  business  establishments  cannot  be 
excluded  from  residence  districts.33 

Nor  may  the  police  power  be  used  to  control  the  general  character 
and  architecture  of  a building.  The  issuance  of  building  permits, 
conditioned  upon  the  proposed  building  conforming  in  size  and  general 
character  and  appearance  to  the  general  character  of  buildings  in  the 
neighborhood,  is  not  justified.34  “A  citizen  has  the  common  law  right 
to  improve  his  property  as  his  taste,  convenience  or  interest  may  sug- 
gest without  considering  whether  his  building  will  conform  to  the 
general  character  of  buildings  previously  erected”,  says  the  court.  The 
compulsory  establishment  of  building  lines  is  not  generally  within  the 
police  power35  though  the  recent  case  of  Eubank  v.  Richmond36  sus- 
tained such  an  ordinance  which  allowed  the  establishment  of  a building 
line  on  request  of  two-thirds  of  the  property  owners  in  the  district 
affected.  This  case  was  reversed  by  the  Supreme  Court  of  the  United 
States37  but  apparently  not  upon  the  ground  that  no  building  line 
could  be  established.  The  requirement  that  dwellings  be  constructed 
as  separate  and  detached  buildings  is  likewise  unreasonable.38 

The  history  of  billboard  regulation  is  a long  one.  When  the 
statute  merely  prescribes  £jie  manner  of  construction  the  regulation  is 
valid.39  If  the  statute  prohibits  the  construction  and  display  of  bill- 

39  Commonwealth  v.  Roberts,  155  Mass.  281;  Health  Dept.  v.  Rector,  145  N. 
T.  32. 

31  Ex  parte  Quong  Wo.  161  Calif.  220;  Chicago  v.  Stratton,  162  111.  494 
(1896);  Shea  v.  Maucie.  148  111.  14;  People  v.  Ericsson,  263  111.  368  (1914). 

'•  32  1 65  Calif.  416,  239  U.  S.  394. 

33  People  v.  Chicago  261  111.  16  (1913;  Stubbs  v.  Scott.  127  Md.  86.  and 
State  v.  Houghton,  134  Minn.  226,  though  the  Minnesota  decision  was  by  a bare 
majority. 

34  Bostock  v.  Sams,  95  Md.  400. 

35  Fruth  v.  Charleston.  75  W.  Va.  456;  Curran  v.  Guilfoyle,  38  App.  Div.  N.  T. 
82;  In  re  Charleston,  57  App.  Div.  N.  Y.  167;  St.  Louis  v.  Hill,  116  Mo.  527. 

38  110  Va.  749. 

37  226  U S 137 

38  Byrne  v.  Maryland  Realty  Co..  129  Md.  202.  (1916). 

39  Gunning  Adv.  Co.  v.  St.  Louis,  235  Mo..  99;  Varney  v.  Williams,  155 
Calif.  318;  People  v.  Ludwig,  218  N.  Y.  540;  Chicago  v.  Gunning.  214  111.  628 
(1905). 


486 


boards  the  regulation  is  held  invalid.40  The  most  advanced  position 
on  billboard  regulation  yet  taken  by  any  court  is  the  recent  decision  in 
Cusack  v.  Chicago,41  where  an  ordinance  prohibiting  the  erection  of 
billboards  in  residential  districts,  except  upon  the  written  consent  of 
the  owners  of  a majority  of  the  frontage  in  the  block,  was  sustained. 
The  ordinance  was  not  sustained  upon  aesthetic  grounds.  The  court 
finds  a relation  to  public  morals  and  health.  Massachusetts  has 
deemed  this  power  inadequate  and  has  attempted  to  expand  the  police 
power  by  a constitutional  amendment  of  1918,  as  follows:  “Adver- 

tising on  public  ways,  in  public  places,  and  on  private  property  within 
public  view  may  be  regulated  and  restricted  by  law.” 

A similar  provision  was  rejected  in  Ohio  in  1912.  A statute 
which  imposes  reasonable  restrictions  upon  the  height  of  buildings  is  a 
proper  exercise  of  the  police  power.42 

Cities  frequently  desire  to  project  new  streets  into  undeveloped 
territory  in  anticipation  of  future  needs  and  to  prohibit  the  erection 
of  buildings  within  the  lines  of  the  proposed  street,  pending  the 
taking  of  title.  Except  in  Pennsylvania  this  has  not  been  allowed 
under  the  police  power.43 

There  has  as  yet  been  no  thorough  testing  of  the  constitutionality 
of  zoning  statutes  such  as  the  one  which  went  into  effect  in  New 
York  City  in  1916,  and  in  Illinois  in  1919.44  The  Illinois  zoning  law 
authorizes  cities  (1)  to  limit  the  height  of  buildings,  (2)  to  limit 
the  bulk  of  buildings,  (3)  to  limit  the  intensity  of  the  use  of  lot  areas, 
(4)  to  determine  the  area  of  yards  and  open  spaces,  (5)  to  restrict 
the  location  of  trades  and  industries,  (6)  to  exclude  trades  and  in- 
dustries from  fixed  districts,  and  (7)  to  establish  residential 
districts  from  which  buildings  designed  for  business  may  be  excluded. 
The  act  provides  that  no  ordinance  shall  deprive  owners  of  existing 
property  of  the  right  to  continue  the  use  of  the  property  for  the  pur- 
pose for  which  it  was  employed  at  the  time  any  such  ordinance  goes 
into  effect.  The  owners  of  a majority  of  the  frontage  in  any  district, 
by  written  objection,  may  prevent  the  enforcement  of  the  ordinance. 
The  Cusack  case,  sustaining  an  ordinance  prohibiting  the  erection  of 
billboards  in  residence  districts  except  upon  the  written  consent  of  the 
owners  of  the  majority  of  the  frontage  in  the  block,  is  a fairly  strong 
authority  for  the  constitutionality  of  the  Illinois  act,  but  it  remains 
yet  to  be  seen  whether  the  courts  will  extend  the  rule  of  that  case  to 
justify  such  regulations  as  are  sought  to  be  authorized  by  this  statute. 
In  Massachusetts  it  has  been  assumed,  apparently,  that  the  decisions 
which  concern  the  constitutionality  of  zoning  statutes  do  not  go  far 
enough  to  make  certain  the  constitutionality  of  such  acts,  and  ac- 
cordingly by  constitutional  amendment  of  1918,  it  was  provided  that : 

40  Haller  v.  Training  School.  249  111.  436  (1911). 

41  267  Til.  344  (1914);  242  U.  S.  526. 

42  Welch  v.  Swasey,  193  Mass.  364,  214  U.  S.  91;  Cochran  v.  Preston.  108 
Md.  220. 

43  Forrster  v.  Scott,  136  N.  Y.  Suppl , 577;  Edwards  v.  Bruorton.  184  Mass. 
529;  Bush  v.  McKeesport,  166  Pa.  St.  57.  See  the  analysis  of  the  cases  bearing 
on  the  constitutional  limitations  on  city  planning  powers  in  the  report  of  the 
Conference  on  City  Planning,  1917.  p.  199,  by  Edward  M.  Bassett,  Special 
counsel  to  the  Zoning  Committee,  New  York  City. 

44  Illinois  Laws,  1919,  p.  262. 


487 


“The  General  Court  shall  have  power  to  limit  buildings  according  to 
their  use  or  construction,  to  specified  districts  of  cities  and  towns.” 

It  is  obvious  that  the  problem  of  the  lot  remnant  is  distinctly  one 
of  eminent  domain  and  not  of  the  police  power.  Assuming  the  con- 
stitutionality of  the  Illinois  Zoning  Act,  control  over  the  height,  bulk, 
location  and  area  of  buildings  which  are  to  be  erected  in  the  future 
may  be  had,  to  the  extent  that  the  owners  of  the  majority  of  the 
frontage,  in  the  district  affected,  consent.  The  act  does  not  and 
probably  could  not  authorize  the  imposition  of  restrictions  upon  the 
architectural  style  and  upon  the  value  of  the  buildings  to  be  later 
erected.  The  act  falls  short  of  conferring  upon  cities  such  control 
over  building  development  as  may  be  exercised  by  a grantor  of  city 
lots  through  restrictive  covenants  in  deeds.  Changes  in  existing  prop- 
erties, and  control  over  the  general  architectural  type  of  buildings  to 
be  erected  can  probably  be  accomplished  only  by  the'  exercise  of  the 
power  of  eminent  domain. 


List  of  constitutional  provisions  authorizing  excess  condemna- 
tion. Constitutional  amendments  providing  for  excess  condemna- 
tion have  been  adopted  in  Massachusetts  (1911),  Ohio  (1912),  Wis- 
consin (1912),  New  York  (1913),  and  Rhode  Island  (1916).  Amend- 
ments of  a broader  character  than  those  actually  adopted  in  New 
York  and  Wisconsin  were  defeated  in  New  York  in  1911  and  in  Wis- 
consin in  1914.  An  amendment  similar  to  those  adopted  in  Ohio  and 
Wisconsin  failed  in  California,  in  1914,  1915,  and  1918.  An  amendment 
similar  to  the  ones  adopted  in  Massachusetts,  New  York,  and  Rhode 
Island,  failed  of  adoption  in  New  Jersey  in  1915. 


488 


V.  EXCESS  CONDEMNATION. 


Lot  Remnants.  The  problem  of  the  lot  remnant  left  by  the 
opening  or  widening  of  streets  did  not  present  itself  acutely  in  Illinois 
until  the  city  of  Chicago  undertook  to  carry  out  its  extensive  program 
of  municipal  improvements.  Upon  the  formulation  of  the  city  plan 
several  years  ago  this  problem  was  anticipated,  and  it  was  urged  that 
the  city  should  be  granted  power  to  condemn  lot  remnants  for  the 
purposes  of  facilitating  their  union  with  adjoining  property.1 

The  recent  widening  of  Twelfth  Street  and  Michigan  Avenue,  and 
the  survey  of  the  proposed  Ogden  Avenue  extension  in  the  city  of 
Chicago  present  the  problem  of  lot  remnants  in  striking  form.  The 
Price  property  located  on  Twelfth  Street  and  Wabash  Avenue  is  said 
to  be  the  most  flagrant  example.2  The  situation  with  respect  to  this 
property  is  as  follows : The  Price  property  had  a frontage 

of  166  feet  on  Twelfth  Street  and  71  feet  on  Wabash 

Avenue.  The  city  took  68  feet  of  the  71  feet  on  a frontage  of 

166  feet.  This  taking  left  a lot  remnant  of  166  feet  fronting  on  the 
widened  street  with  a depth  of  3 feet.  The  loss  to  the  city  appears 
from  the  following  figures.  The  city  paid  $204,000  for  the  68  feet 
taken,  that  is,  at  the  rate  of  $3,000  per  front  foot  on  Wabash  Avenue. 
The  Supreme  Court  held  the  remnant  was  damaged  and  not  benefited 
and  for  this  damage  the  city  paid  $9,000,  that  is  $3,000  per  front  foot. 
The  city,  therefore,  paid  the  owner  as  much  for  the  property  which 
was  not  taken  as  it  paid  for  the  land  taken.  Had  it  been  allowed  to 
take  this  remnant,  which  it  paid  for  in  full,  it  could  have  recouped 

at  least  a portion  of  this  cost  by  sale  to  the  owner  of  the  adjoining 

property. 

The  city  also  loses  in  the  amount  of  the  special  assessment  which 
can  be  levied  against  the  property  in  the  rear.  In  this  case  the  50-foot 
lot  behind  the  remnant  was  assessed  $14,200.  For  the  25  feet  nearest 
Twelfth  Street  it  was  assessed  $440  per  front  foot,  or  $11,000;  for 
the  next  25  feet,  $128  per  front  foot  or  $3,200.  Had  the  remnant 
been  united  with  the  adjoining  property,  at  this  rate,  such  remnant  as  a 
part  of  the  other  property,  would  have  borne  an  assessment  for  benefits 
of  $1,320,  instead  of  a damage  of  $9,000'.  As  a matter  of  fact,  how- 
ever, this  three-foot  strip  and  the  rear  property  would  have  been 

1 Legal  Aspects  of  the  City  Plan,  by  Walter  L.  Fisher,  in  the  report  on 
“Plan  of  Chicago’’  by  the  Commercial  Club  of  Chicago. 

2 Chicago  Bureau  of  Public  Efficiency,  Report  on  Excess  Condemnation, 
Sept.  1918.  This  report  discusses  this  problem  in  Chicago  in  detail  and  pre- 
sents several  diagrams  showing  the  size  and  shape  of  the  remnants  which 
have  been  left.  The  Report  of  the  Committee  on  Taxation  of  New  York  on 
Excess  Condemnation  contains  a number  of  photographs  and  diagrams  of  lot 
remnants  in  New  York  City. 


489 


assessed  at  a rate  higher  than  $440  per  front  foot,  for  they  could  then 
have  been  assessed  as  corner  property,  The  probable  increase'  in  the 
assessment  rate  over  $440  per  front  foot  if  it  had  been  corner  property 
appears  roughly  from  a comparison  of  the  assessment  on  corner  prop- 
erty lying  to  the  east  and  fronting  on  Michigan  Avenue.  Here,  the 
whole  of  the  original  corner  property  was  taken  and  a small  part  of 
the  lot  in  the  rear  was  taken  but  there  was  left  to  this  lot  a frontage 
of  32  feet  on  Michigan  Avenue  and  a new  frontage  on  Twelfth  Street 
of  about  the  same  length,  so  that  it  now  became  corner  property.  This 
lot  was  assessed  $1,220  per  front  foot,  or  a total  of  $60,000  as  com- 
pared with  the  assessment  of  $440  per  front  foot  on  the  lot  on  Wabash 
Avenue  which  was  blocked  off  from  the  new  street  by  the  remnant. 
Michigan  Ayenue  property  is  about  twice  as  valuable  as  Wabash  Ave- 
nue property  at  this  point.  After  making  this'  deduction,  it  appears 
that  the  first  32  feet  of  frontage  on  Wabash  Avenue  should  have  been 
assessed  $30,000.  Actually- this  32  feet  was  assessed  but  $11,500 — 
nothing  for  the  first  3 feet,  $14,000  for  the  next  25  feet  and  $500  for 
the  remaining  4 feet.  The  city  lost  the  difference  between  $30,000  and 
$11,500,  or  $18,500,  plus  the  $9,000  paid  as  damages  for  the  3-foot 
strip,  making  a total  loss  of  $27,500. 

The  report  of  the  Chicago  Bureau  of  Public  Efficiency,  from 
which  the  above  facts  are  taken,  states  that  617  feet  of  frontage  of  the 
Michigan  Avenue  widening,  out  of  a total  of  3,000  feet  affected,  will 
have  depths  of  from  5 to  14  feet.  Approximately  one-fifth  of  the 
frontage  on  one  side  of  the  Michigan  Avenue  improvement  is  thus 
made  up  of  remnants.  The  proposed  Ogden  Avenue  extension  will 
leave  93  remnants,  with  a frontage  of  approximately  3,300  feet  on  the 
proposed  new  street,  too  small  for  building  purposes. 

From  these  facts  the  primary  reasons  for  allowing  the  condem- 
nation of  lot  remnants  are  apparent.  There  is  an  unquestionable  di- 
rect loss  to  the  city.  There  is  also  a loss  to  the  property  owners  in 
the  neighborhood.  The  history  of  lot  remnants  in  several  cities  shows 
that  they  are  apt  to  remain  in  separate  ownership  for  years.  They  can- 
not be  used  for  building  purposes.  The  street  is  thus  left  in  an  ugly 
and  irregular  appearance.  Frequently  this  condition  is  accentuated 
by  the  use  of  the  small  area  for  billboards  or  other  structures  of 
temporary  nature  out  of  keeping  with  the  general  character  of  the 
neighborhood.  The  development  of  the  street  is  greatly  retarded  and 
the  normal  increase  in  real  estate  values  is  checked.  The  improvement 
is  thus  robbed  of  much  of  its  effectiveness  and  the  general  utility  of 
the  district  is  greatly  impaired. 

It  has  sometimes  been  urged  that  the  taking  of  the  remnant  is  un- 
necessary because  its  union  with  the  adjoining  property  can  be  brought 
about  through  private  sale  or  at  most  by  authorizing  the  city  to  buy 
the  strip  if  the  owner  is  willing.  The  experience  of  New  York  does 
not  justify  this  hope.  The  union  of  the  two  properties  is  dependent 
largely  on  the  price  asked  for  the  remnant.  The  history  of  such  par- 
cels shows  that  the  main  obstacle  is  file  wide  difference  of  opinion  as 
to  price  between  the  owner  of  the  remnant  and  the  proposed  purchaser. 


490 


The  city,  not  primarily  desiring  pecuniary  gain  from  this  strip,  would 
be  in  a much  better  position  to  cause  the  two  properties  to  be  united. 
Where  the  remnant  is  owned  by  several  persons  having  different  inter- 
ests and  some  of  them  under  disability  the  obstacles  to  a private  sale 
are  great. 

Investigations  into  the  lot  remnant  problem  have  led  to  the  con- 
clusion that  the  city  should  be  given  the  power  to  condemn  these  ill- 
shaped strips  of  land. 

The  Massachusetts  Committee  on  Eminent  Domain,  which  made 
an  exhaustive  study  of  excess  condemnation  here  and  in  Europe,  says 
in  its  report,  “It  often  happens  that  the  owners  of  these  remnants,  de- 
sirous of  deriving  some  income,  erect  temporary  structures,  unsuited 
for  proper  habitation  or  occupancy.  Such  structures  are  frequently 
made  intentionally  objectionable,  both  in  appearance  and  in  the  char- 
acter of  their  occupancy  for  the  purpose  of  compelling  the  purchase 
of  the  remnant  at  exorbitant  prices.  The  result  is  that  a new  thorough- 
fare, which  should  be  an  ornament  to  the  city,  is  frequently  for  a long 
period  after  its  construction  disfigured  by  unsightly  and  unwholesome 
structures  to  the  positive  detriment  of  the  public  interests.”3 

The  Committee  on  Taxation  of  the  City  of  New  York,  in  its  re- 
port on  Excess  Condemnation,  reaches  a similar  conclusion.  “New  York 
furnishes  several  ‘horrible  examples’  in  cutting  new  streets  through 
sections  already  built  up  without  excess  condemnation.  Excess  con- 
demnation would  leave  the  city  free  to  rearrange  and  subdivide  the 
land  fronting  the  improvement  into  plots  of  the  size  and  shape  best 
suited  to  the  proposed  development.”4 

The  Chicago  Bureau  of  Public  Efficiency,  in  its  recent  study  of 
this  problem,  concludes  that  “If  in  future  projects  the  difficulties  are 
to  be  avoided  which  the  city  has  met  in  the  building  of  the  Michigan 
Avenue  boulevard  link  and  the  widening  of  Twelfth  Street,  the  City 
must  be  given  a free  hand  so  that  it  can  deal  with  this  problem, 
rearranging  the  lots  in  a block  to  conform  to  the  new  street,  thus 
making  them  available  for  building  purposes.  When  remnants  are 
left  it  is  essential  if  the  street  is  to  be  developed  speedily  that  such 
remnants  be  united  with  adjoining  property  under  a single  ownership 
so  that  the  combined  plots  can  be  made  suitable  for  building  sites.”5 6 

Writers  on  the  question  have  reached  similar  conclusions.0  It 
will  also  be  noticed  from  the  texts  of  proposed  and  adopted  consti- 
tutional amendments  in  the  appendix  that  in  all  of  those  states,  except 
in  New  Jersey,  where  the  language  of  the  proposed  amendment  limited 
the  power  of  excess  condemnation  to  the  taking  of  remnants,  the  pro- 
vision has  been  adopted.7 

3 Massachusetts  House  Document  228,  (1904),  p.  5. 

4 Report,  1915. 

5 Report  on  Excess  Condemnation,  Sept.  1918,  p.  36. 

6 Flavel  Shurtleff  and  Frederick  Law  Olmsted,  Carrying  out  the  City  Plan; 
Lawson  Purdy,  Report  of  the  Conference  on  City  Planning,  1911,  p.  121;  Her- 
bert S.  Swan,  Report  on  Excess  Condemnation,  prepared  for  the  Municipal 
League,  published  by  the  Committee  on  Taxation  of  New  York;  Robert  E. 
Cushman,  Excess  Condemnation,  p.  72;  Ernst  Freund,  Conference  on  City 
Planning,  1911  p.  242. 

7 Massachusetts,  New  York  and  Rhode  Island. 


491 


Protection  of  public  improvements.  In  recent  years  there  has 
been  considerable  discussion  as  to  the  advisability  of  conferring  upon 
municipalities  the  power  to  condemn  land  bordering  on  an  improve- 
ment, for  the  purpose  of  facilitating  the  city’s  control  over  the  char- 
acter of  the  neighborhood.  A new  use  of  the  power  of  eminent  domain 
is  sought  for  purposes  which  are  outside  the  police  power.  While  the 
city  may,  under  its  police  power,  reasonably  control  building  heights, 
and  exclude  such  business  concerns  from  residential  districts  as  livery 
stables,  public  garages,  brick  yards  and  the  like  and  may  exercise  a 
fairly  adequate  control  over  billboards,  it  cannot  establish  an  exclu- 
sively residential  neighborhood,  nor  a business  district,  except  in  so 
far  as  these  objects  will  prove  to  be  attainable  under  a zoning  law  such 
as  was  enacted  in  Illinois  in  1919.  The  city,  under  the  police  power, 
cannot  impose  restrictions  upon  the  general  architectural  style  or  value 
of  buildings.  The  various  sections  of  metropolitan  areas  are  under- 
going continual  change,  with  a destructive  effect  upon  the  stability  of 
land  values  and  upon  the  harmony  of  architectural  construction  and  ar- 
rangement. Slum  areas  develop.  Public  improvements  constructed  at 
great  expense  may  fail  to  accomplish  the  objects  for  which  they  were 
designed  because  their  usefulness  becomes  impaired  by  changed  condi- 
tions. Building  restrictions  inserted  in  deeds  to  newly  sub-divided 
property  operate  as  partial  correctives  where  they  exist,  but  the  policy 
behind  them  is  not  formulated  with  respect  to  the  city’s  needs  as  a 
whole. 

It  has  been  proposed,  therefore,  that  the  city  be  given  power  to 
condemn  land  which  borders  upon  public  improvements  such  as  streets, 
parks  and  public  buildings  and  to  sell  the  excess  land  with  restrictions 
as  to  the  use  of  the  property  ; the  power  to  be  used  with  respect  to 
developed  as  well  as  undeveloped  property.  There  has  been  virtually 
no  experience  in  this  country  in  employing  the  power  of  eminent 
domain  for  this  purpose,  but  it  has  been  used  in  England  with  con- 
siderable effectiveness  during  the  past  twenty  years.  Constitutional 
amendments  authorizing  excess  condemnation  for  this  purpose  have 
been  adopted  in  Ohio  and  Wisconsin,  both  in  1912;  and  have  failed 
of  adoption  in  New  York  and  California. 

It  is  argued  that  the  city  should  have  the  power  to  control,  within 
reasonable  limits,  the  character  of  a district  bordering  on  its  own  im- 
provements, if  it  is  willing  to  pay  for  that  privilege.  It  is  urged  that 
the  exclusion* of  inappropriate  structures  and  business  establishments 
in  residence  districts,  or  of  residences  in  business  districts,  the  securing 
of  reasonable  harmony  in  architecture,  building  lines  and  uses  of  prop- 
erty steady  land  values,  and  benefit  property  owners  and  the  city 
economicallv  and  from  a standpoint  of  aesthetics.  It  is  also  urged 
that  the  realization  of  the  full  benefit  of  the  improvement  would  there- 
by be  insured ; that  the  power  would  be  an  effective  instrument  for 
the  rehabilitation  of  insanitary  areas ; that  public  health,  morals  and 
welfare  would  be  promoted.  Legislative  investigative  committees  and 
civic  bodies  have  reported  in  favor  of  this  extension  of  the  power  of 
eminent  domain.  The  Committee  on  Taxation  of  the  City  of  New 


492 


York  has  stated  that,  “American  cities  have  been  hampered  in  effective 
city  plan  development  and  in  creating  dignified  and  artistic  places  by 
the  free  and  unrestricted  use  of  abutting  property  by  private  owners. 
There  is  no  orderly  architectural  arrangement.  The  city  should  have 
the  power  to  sell  or  lease  the  excess  land  subject  to  suitable  restric- 
tions/’8 

The  Chicago  Bureau  of  Public  Efficiency  recently  said,  “Ex- 
perience in  the  widening  of  Michigan  Avenue  and  Twelfth  Street, 
the  two  initial  projects  in  the  carrying  out  of  the  Chicago  plan,  shows 
not  only  that  distorted  and  unusable  small  areas  or  remnants  are  left 
when  a street  improvement  of  this  character  is  made,  but  also  that 
the  municipality,  having  no  control  over  the  character  of  building 
development  along  the  line  of  the  new  street,  may  find  that  the  use- 
fulness and  the  value  of  the  improvement,  because  of  the  lack  of 
beauty  and  symmetry  in  the  buildings  erected  along  the  new  thorough- 
fare may  be  greatly  lessened,  although  the  community  has  been  put 
to  large  expense  to  make  the  street  adjustment.  * * * It  [the  city] 
must  secure  control  over  building  improvements  fronting  on  the  newly 
widened  or  opened  street  in  order  that  the  desired  view,  appearance 
and  economic  importance  of  the  new  thoroughfare  may  be  preserved 
and  the  full  benefit  of  the  improvement  realized.”  9 

In  his  report  on  the  legal,  aspects  of  the  city  plan  in  1909,  Walter 
L.  Fisher  had  the  following  to  say  with  reference  to  this  proposal : 
“In  order  to  secure  the  full  benefit  of  a park,  boulevard,  avenue  or 
other  public  recreation  or  resort,  some  control  of  the  immediate  sur- 
roundings is  indispensable.  The  municipal  authorities  need  some 
power  to  regulate  the  use  of  premises  within  immediate  view  of  the 
public  grounds,  so  as  to  prevent  advertising,  restrict  kinds  of  business, 
and  make  appropriate  regulation  of  the  heights,  manner  of  construction 
and  location  of  the  surrounding  buildings.  To  that  end  resort  must 
be  had  either  to  the  police  power  or  to  the  power  of  eminent  domain. 
The  police  power  of  the  state  is  not  available  for  merely  esthetic  pur- 
poses and  is  quite  inadequate  to  the  solution  of  this  special  problem.”10 

Several  writers  have  likewise  put  themselves  on  record  as  favor- 
ing this  extension  of  the  power  of  eminent  domain.* 11 

The  fundamental  objection  to  excess  condemnation  for  the  purpose 
of  controlling  the  character  of  areas  bordering  on  public  improvements 
is,  of  course,  that  the  taking  amounts  to  an  unjustifiable  interference 
with  the  rights  of  private  property.  It  is  said  that  the  public  welfare 
does  not  demand  it ; that  the  police  power  is  adequate,12  and  that  it  is 
preferable  to  seek  any  desired  extension  of  control  over  the  use  and 
location  of  buildings  through  the  gradual  expansion  of  the  police  power 
by  judicial  decision  rather  than  by  abrupt  changes  in  constitutional 


8 Report  on  Excess  Condemnation. 

9 Report  on  Excess  Condemnation,  pp.  35-36. 

10  Plan  of  Chicago,  Commercial  Club  of  Chicago,  p.  139. 

11  Flavel  Shurtleff,  Carrying  out  the  City  Plan,  p.  137;  Robert  E.  Cushman, 
Excess  Condemnation,  p.  116;  Herbert  S.  Swan,  Report  on  Excess  Condemna- 
tion, p.  19;  William  Bennett  Munro,  Principles  and  Methods  of  Municipal 
Administration,  p.  91. 

12  Ernst  Freund,  Conferences  on  City  Planning,  1911,  p 242. 


493 


principles,  upon  the  theory  that  gradual  changes  are  more  calculated 
to  represent  the  real  desires  of  the  people.  It  is  further  urged  that 
the  exercise  of  the  police  power  entails  little  expense  to  the  public 
as  cofnpared  with  that  which  accompanies  the  taking  of  property  under 
the  power  of  eminent  domain  and  that  it  is  better  to  sacrifice  the  added 
control  which  cities  would  derive  from  this  extension  of  the  power  of 
eminent  domain  than  to  adopt  a policy  which  might  lead  to  an  era 
of  unfortunate  land  speculation  for  cities.  Doubtless  for  these  reasons 
proposed  constitutional  amendments  providing  for  excess  condemna- 
tion for  these  purposes  have  in  some  instances  failed  of  adoption,  as 
has  been  the  case  in  California  three  times  and  in  New  York,  although 
such  a constitutional  provision  has  been  adopted  in  Ohio  and  in  Wis- 
consin. 

The  amendments  which  have  been  rejected  have  conferred  rela- 
tively broad  powers  upon  the  legislature,  and  it  is  likely  that  the  desired 
objects  could  have  been  secured  by  a more  restricted  grant  of  power. 
The  New  York  and  California  proposed  amendments  merely  limited 
the  taking  of  property  to  that  which  was  “additional,  adjoining  and 
neighboring”.  There  was  no  limitation  as  to  the  kind  of  improve- 
ment to  which  the  power  applied. 

To  meet  the  objections  that  have  been  raised  to  the  use  of  excess 
condemnation  for  the  purpose  of  protecting  improvements,  two  pro- 
posals have  been  made.  One  consists  in  requiring  the  city  to  sell  the 
land,  condemned  in  excess,  to  its  former  owner  if  he  wishes  to  buy  it. 
Only  upon  his  rejection  of  the  offer  would  the  land  be  offered  to  the 
general  public.  There  would  seem  to  be  no  public  advantage  in  selling 
land  to  another  when  the  former  owner  is  willing  and  able  to  retake 
title  with  the  restrictions. 

A second  proposal,  designed  to  meet  some  of  the  objections 
and  at  the  same  time  calculated  to  secure  many  of  the  advantages 
of  excess  condemnation  for  the  purpose  of  protecting  improve- 
ments, seeks  to  confer  upon  municipalities  the  power  to  condemn 
easements  only  in  the  adjoining  land.  Under  this  plan  the  prop- 
erty owner  is  protected  in  his  ownership  but  is  restricted  in  the 
use  of  his  property.  It  is  further  urged  that  this  plan  would  in- 
volve less  financial  risk  to  the  city.  Within  certain  limits,  not 
well  defined,  the  condemnation  of  easements  could  be  authorized 
bv  statute  but  any  thorough-going  plan  of  control  would  prob- 
ably meet  with  constitutional  obiection.  The  recent  act  in  this 
state  providing  for  the  consolidation  of  the  local  governments  of 
Chicago,  but  which  has  never  gone  into  effect,  authorizes  the  city 
to  acquire  easements  in  lands  in  the  vicinity  of  parks  for  the  pur- 
pose of  controlling  the  surroundings.  As  to  the  policy  of  con- 
demning easements,  those  who  advocate  the  broader  power  admit 
its  effectiveness  but  denv  that  it  goes  far  enough.  As  far  as 
undeveloped  territorv  is  concerned,  the  condemnation  of  easements 
probably  would  be  adeouate  but  it  is  contended  that  this  power 
would  not  be  adequate  to  protect  improvements  or  to  change  the 
character  of  a district  which  is  already  improved. 


494 


Recoupment.  The  proposal  has  been  made  to  employ  the 
principle  of  excess  condemnation  for  the  purpose  of  recouping 
the  cost  of  a public  improvement  and  for  intercepting  a part  of 
the  increment  of  value  added  to  land  as  a result  of  the  improve- 
ment. T he  adoption  of  such  a policy  is  advocated  as  a substitute 
for  or  as  supplementary  to  the  common  practice  in  this  country 
of  levying  special  assessments,  or  the  practice  in  some  European 
countries  of  imposing  increment  taxes.  It  is  urged  that  the  city 
having  created  this  increment  of  value  is  entitled  to  receive  it. 
The  economic  justification  for  recoupment  is  much  the  same  as 
that  which  supports  a tax  on  the  unearned  increment  such  as  is 
levied  in  England  under  the  provisions  of  the  Lloyd  George  budget 
of  1909. 

The  principle  of  recoupment  has  never  been  adopted  in  this 
country  though  it  has  been  employed  extensively  in  European 
countries.  In  England  the  practice  dates  back  to  the  Land  Clauses 
Consolidation  Act  of  1845,  but  as  a financial  measure  it  has  not 
been  a success.  Out  of  fourteen  miles  of  streets  widened  by  the 
Metropolitan  Board  of  Public  Works  of  London  at  a cost  of 
$58,859,000  the  sale  of  the  surplus  land  totaled  but  $26,608,000. 
A few  street  improvements  have  shown  a margin  of  profit.  Later 
improvements  put  through  by  the  London  County  Council  were, 
with  but  few  exceptions,  not  financially  successful.  The  extensive 
improvements  in  the  city  of  Paris,  during  the  days  of  the  second 
empire,  showed  a like  loss.  Land  to  the  amount  of  $259,400,000 
was  condemned  but  in  1869  the  city  had  recouped  but  $51,800,000 
from  the  sale  of  surplus  lands  and  still  had  on  hand  land  valued 
at  $14,400,000.  Later  projects  have  likewise  failed  to  produce  a 
profit  or  meet  the  cost.  The  experience  of  Belgium,  while  in 
many  cases  productive  of  heavy  losses,  in  more  recent  years  has 
been  more  successful,  particularly  in  projects  which  were  designed 
to  change  the  character  of  slum  areas.  The  levying  of  special 
assessments  is  not  common  in  Europe  though  it  is  coming  to  be 
looked  upon  with  greater  favor. 

In  this  country  there  is  but  little  enthusiasm  shown  for  the  adop- 
tion of  the  principle  of  condemning  land  for  purposes  of  recouping 
the  cost  of  an  improvement.13  The  financial  risks,  apparent  from 
European  experience,  are  deemed  too  great.  The  practice  of  levying 
special  assessments  is  regarded  as  preferable.  When  recoupment  is 
favored  at  all,  it  is  regarded  not  as  the  primary  object  but  as  an 
incident  to  some  other  project  such  as  taking  of  lot  remnants  or  the 
protection  of  improvements.  In  every  case  in  this  countrv  where  a 
proposed  constitutional  amendment  has  been  worded  broadly  enough 
to  permit  the  taking  of  excess  land  for  purposes  of  recoupment,  it  has 
been  defeated.  This  has  been  the  case  in  New  York,  Wisconsin,  and 
California,  although  in  the  first  two  states  amendments  of  more  limited 
scope  have  been  adopted. 

13  Committee  on  Taxation  of  New  York,  Report  on  Excess  Condemnation: 
Chicago  Bureau  of  Public  Efficiency,  Report  on  Excess  Condemnation;  Her- 
bert S.  Swan,  Report  on  Excess  Condemnation:  W.  L.  Fislier,  Legal  Aspects 
of  the  City  Plan;  R.  E.  Cushman,  Excess  Condemnation  Flavel  Shurtlefr, 
Carrying  out  the  City  Plan. 


495 


Analysis  of  constitutional  provisions  authorizing  excess  con- 
demnation. If  it  be  decided  to  adopt  the  principle  of  excess  con- 
demnation the  following  distinct  questions  are  presented : 

1.  Should  the  clause  be  self-executing? 

2.  Upon  what  agencies  of  the  state  should  power  be  conferred? 

3.  To  what  kinds  of  public  improvements  should  it  be  applied? 

4.  How  much,  land  in  excess  should  the  condemning  agency  be 
authorized  to  take? 

5.  What  interest  in  the  land  should  be  authorized  to  be  taken? 

6.  What  directions  should  be  given  as  to  the  disposition  of  the 
excess  taken? 

7.  What  restrictions-  should  be  imposed  in  the  disposition  of  the 
excess  land? 

(1)  Self-executing  or  enabling  act.  The  amendments  adopted 
in  Massachusetts,  New  York,  Rhode  Island  and  the  amendments 
which  failed  of  adoption  in  California  and  New  Jersey  are  enabling 
acts.  The  Ohio  and  Wisconsin  amendments  and  the  amendments 
defeated  in  New  York  and  Wisconsin  are  probably  self-executing. 
An  enabling  act  would  be  in  harmony  with  other  eminent  domain 
clauses  and  would  be  preferable.  The  necessary  detailed  restric- 
tions could  more  effectively  be  worked  out  by  a general  legislative 
enactment. 

(2)  Upon  what  agencies  should  the  power  be  conferred?  The 
various  amendments  contain  the  following  provisions  relating  to 
the  character  of  the  agencies  upon  which  the  power  is  conferred. 
In  Massachusetts  the  power  is  given  to  the  commonwealth,  coun- 
ties, cities  or  towns;  New  York,  cities;  Ohiov  municipalities;  Wis- 
consin, the  state  or  any  of  its  cities ; Rhode  Island,  the  state  or 
any  cities  or  towns. 

The  amendments  which  were  rejected  in  New  York,  (1911) 
conferred  the  power  upon  municipal  corporations;  Wisconsin, 
(1914)  municipal  corporations;  California,  (1914,  1915,  1918),  the 
state,  county,  city  or  town;  New  Jersey  (1915),  the  state,  counties, 
cities,  towns,  boroughs,  or  other  municipality  or  any  board,  gov- 
erning body  or  commission. 

While  the  cities  are  the  governmental  agents  chiefly  interested 
in  obtaining  the  power  of  excess  condemnation,  no  reasons  have 
been  advanced  for  excluding  other  governmental  agencies  from 
exercising  the  power.  The  most  comprehensive  provision  deal- 
ing with  this  matter  is  contained  in  the  proposed  amendment  which 
was  defeated  in  New  Jersey  in  1915.  The  purposes  for  which  the 
power  of  excess  condemnation  are  to  be  authorised  would  affect 
the  question  here  considered.  In  any  event  if  the  power  is  to  be 
granted  it  should  be  conferred  upon  all  those  governmental 
agencies  which  may  possibly  have  to  deal  with  the  particular 
problem  or  problems  sought  to  be  solved  by  the  grant  of  the 
power  of  excess  condemnation. 

(3)  Kind  of  public  improvement  to  which  the  power  is  to 
be  applied.  There  is  considerable  variation  in  the  amendments 
which  have  been  proposed  or  adopted  as  to  the  kind  of  improve- 


496 


ment  to  which  the  power  of  excess  condemnation  is  to  be  applied. 
In  general  there  arc  two  types  of  provisions : those  which  specify 
in  detail  the  kind  of  improvement  in  connection  with  which  the 
power  is  to  be  exercised  and  those  which  are  phrased  generally  so 
as  to  apply  to  any  public  improvement. 

The  provisions  in  amendments  which  were  adopted  are  as 
follows : Massachusetts,  “laying  out,  widening  or  relocating  high- 

ways or  streets”;  New  York,  “laying  out,  widening,  extending  or  re- 
locating parks,  public  places,  highways  or  streets” ; Rhode  Island,  “es- 
tablishing, laying  out,  widening,  extending  or  relocating  of  public 
highways,  streets,  places,  parks  or  parkways” ; Ohio,  appropria- 
tions of  property  for  public  use — the  provision  seems  to  include 
all  local  improvements  of  municipalities ; Wisconsin,  establishing, 
laying  out,  widening,  enlarging,  extending  and  maintaining 
memorial  grounds,  streets,  squares,  parkways,  boulevards,  parks, 
playgrounds,  sites  for  public  buildings. 

Proposed  amendments  which  failed  of  adoption:  New  York, 

property  taken  for  public  use  by  municipal  corporations;  Wis- 
consin, property  taken  for  public  use  by  municipal  corporations ; 
California,  any  proposed  improvement;  New  Jersey,  laying  out, 
widening,  extending  or  relocating  parks,  public  places,  highways 
or  streets. 

While  most  of  the  discussion  of  excess  condemnation  con- 
cerns the  protection  of  streets  and  parks,  there  have  been  few, 
if  any,  reasons  given  for  excluding  other  public  improvements. 

(4)  Quantity  of  land  authorized  to  be  taken.  As  to  the 
amount  of  land  which  may  be  taken  in  excess  there  are,  in  general, 
two  types  of  provisions  : those  which  limit  the  taking  of  land  to 
an  amount  sufficient  to  form  suitable  building  sites  and  those 
which  place  either  no  limitation  or  a very  general  one  on  the 
amount.  Amendments  in  Massachusetts,  New  York,  Rhode  Is- 
land, and  the  proposed  but  defeated  amendment  in  New  Jersey 
restricted  the  amount  to  be  taken  to  suitable  building  sites.  The 
Ohio  amendment  and  the  amendment  defeated  in  California  in 
1918  placed  no  limitation  upon  the  amount  to  be  taken.  In  Wis- 
consin, the  amount  of  land  is  restricted  to  lands  in  and  about, 
along,  and  leading  to,  any  improvement.  Of  the  amendments 
which  failed:  New  York  restricted  the  taking  of  land  to  those 

that  were  additional,  adjoining  and  neighboring;  Wisconsin, 
additional,  adjoining  and  neighboring;  California,  (1914  and  1915) 
additional,  adjoining  or  neighboring. 

If  it  is  sought  to  provide  for  the  lot  remnant  problem 
only,  a provision  which  limits  the  taking  to  an  amount 
sufficient  to  make  suitable  building  sites  is  appropriate.  If  it  is 
sought  to  authorize  the  taking  of  excess  land  for  the  purpose  of  con- 
trolling the  character  of  the  neighborhood  adjoining  a public  improve- 
ment, a provision  which  does  not  attempt  to  place  a definite  limit  on 
the  amount  that  may  be  taken  would  accomplish  this  object,  but  such 
a provision  could  also  be  construed  as  authorizing  the  taking  of  land 
for  purposes  of  recoupment.  This  result  might  be  avoided  if  the 


clause  authorized  the  sale  of  the  excess  only  under  restrictions  ap- 
propriate to  preserve  the  improvement,  or  it  might  also  be  accom- 
plished by  an  unlimited  grant  or  by  a grant,  limited  to  the  land  which 
was  adjoining,  or  neighboring,  with  the  proviso  that  the  amount  of  land 
taken  in  excess  be  no  more  in  extent  than  would  be  sufficient  to  protect 
and  preserve  the  improvement.  The  clause  authorizing  the  sale  under 
restrictions  could  then  be  added. 

(5)  Interest  in  land  to  be  taken.  The  majority  of  amendments 
make  no  provisions  as  regards  the  interest  in  land  that  may  be  ac- 
quired. Ohio  authorizes  the  condemning  authorities  to  appropriate  or 
acquire;  Wisconsin,  acquire  by  gift,  purchase  or  condemnation;  New 
York,  to  take ; Massachusetts,  take  in  fee ; Rhode  Island,  acquire  or 
take  in  fee.  The  amendments  which  failed  in  New  York,  Wisconsin 
and  New  Jersey  used  the  word  “take”  only.  California,  (1914,  1915, 
1918)  “take  and  appropriate  in  fee  simple  under  the  power  of  eminent 
domain.”  Under  the  general  rule,  a fee  could  be  taken  under  any 
of  these  provisions  if  the  legislature  so  provided.  No  proposed  amend- 
ment has  undertaken  to  limit  the  taking  to  easements,  but  the  amend- 
ment adopted  in  Rhode  Island^provides  that  the  person  from  whom 
the  excess  is  taken  shall  have  the  first  right  to  purchase  the  land. 

(6)  Disposition  of  the  surplus.  In  all  the  amendments  except 
those  which  were  defeated  in  New  York  and  Wisconsin,  there  is  a 
clause  authorizing  the  sale  or  leasing  of  the  excess  land.  The  Rhode 
Island  provision,  which  in  effect  gives  the  former  owner  an  option  to 
repurchase,  would  seem  to  be  desirable  where  the  land  is  taken  for  the 
purpose  of  sale  under  building  restrictions,  but  not  where  the  land 
is  taken  for  the  purpose  of  making  suitable  building  sites,  for  in  this 
case  the  object  of  the  taking  is  to  bring  about  a union  of  two  or  more 
properties  which  are  separately  owned. 

(7)  Restrictions  as  to  use.  If  only  such  excess  lancj  is  taken  as  is 
necessary  to  make  suitable  building  sites,  it  will  not  always  be  neces- 
sary to  resell  the  excess  under  restrictions.  In  those  states  where  the 
taking  is  restricted  to  lot  remnants,  the  usual  provision  authorizes  the 
sale  of  the  land  with  or  without  restrictions.  Such  provisions  are 
found  in  the  amendments  adopted  in  Massachusetts  and  Rhode  Island. 
The  New  York  amendment  contains  no  provision  dealing  with  the 
matter  of  restrictions,  nor  do  the  amendments  which  were  defeated  in 
New  York  in  1911,  Wisconsin  in  1914,  and  in  California  in  1918>  The 
proposal  defeated  in  New  Jersey,  which  was  limited  to  the  taking 
of  lot  remnants,  provided  for  sale  under  reasonable  restrictions. 
Those  amendments  which  authorize  the  taking  of  excess  land  for  the 
purpose  of  protecting  and  controlling  the  character  of  the  neighbor- 
hood obviously  must  contain  provisions  authorizing  the  sale  of  the 
excess  under  restrictions.  Ohio  provides  that  the  surplus  may  be  sold 
with  such  restrictions  as  shall  be  appropriate  to  preserve  the  improve- 
ment made;  the  Wisconsin  amendment  authorizes  the  sale  of  the 
surplus  with  reservations  concerning  the  future  use  and  occupation  of 
such  real  estate  so  as  to  protect  such  public  improvements  and  their 
environs  and  to  preserve  the  view,  appearance,  light,  air  and  use- 
fulness of  such  public  works ; the  California  proposal,  defeated  in 


498 


1913  and  1915,  authorized  the  sale  under  such  terms  and  restrictions 
as  may  be  appropriate  to  preserve  or  further  the  improvement  made 
or  proposed  to  be  made;  the  California  amendment,  defeated  in  1918, 
authorized  the  sale  under  such  procedure  as  is  prescribed  by  law. 
Amendments  defeated  in  New  York  and  in  Wisconsin  contained  no 
provisions  relating  to  restrictions.  For  simplicity  and  clearness  the 
Ohio  provision  seems  preferable,  but  there  should  be  added  to  it  a 
provision  which  will  give  to  the  former  owner  the  first  right  to  re- 
purchase. 


499 


VI.  CONCLUSION. 


Changes  introduced  by  the  Constitution  of  1870.  The  consti- 
tutions of  1818  and  1848  contained  but  one  clause  dealing  with  the 
power  of  eminent  domain.  This  provision  required  the  payment  of 
just  compensation  when  property  was  taken  for  public  use.  Several 
changes  were  introduced  in  the  constitution  of  1870:  (1)  The  right 
to  compensation  was  extended  to  cases  where  property  was  merely 
damaged  for  public  use.  This  action  has  since  been  followed  by 
about  half  of  the  states.  (2)  As  a second  result  of  this  change  the 
court  has  held  that  where  a part  of  a tract  of  land  has  been  taken 
and  the  remainder  part  has  been  specially  benefited,  the  amount  of  this 
special  benefit  cannot  be  set  off  against  the  value  of  the  part  taken, 
thus  changing  the  constitutional  rule  as  it  was  under  the  constitutions 
of  1818  and  1848.  As  applied  to  private  corporations  this  is  the  gen- 
eral rule  in  other  states,  but  in  about  half  of  the  states,  in  takings  by 
the  state  or  by  other  governmental  agencies,  special  benefits  to  the  part 
of  a tract  not  taken  may  be  set  off  against  the  value  of  the  part  taken. 
It  has  been  urged  that  this  rule  should  be  changed  primarily  in  the 
interest  of  all  governmental  agencies  which  do  not  possess  the  power 
of  levying  special  assessments,  i.  e.,  all  agencies  other  than  cities,  towns, 
villages,  park  districts  and  drainage  districts.  (3)  Jury  trial  to  de- 
termine compensation  was  for  the  first  time  guaranteed  in  the  consti- 
tution of  1870.  The  state  is  exempted  from  this  provision  but  it  does 
apply  to  all  other  governmental  agencies.  Similar  provisions  are 
found  in  about  one-third  of  the  states,  but  in  most  of  these  states  the 
provisions  do  not  apply  to  governmental  agencies.  The  provision  has 
been  the  subject  of  some  criticism  in  other  states.  (4)  The  consti- 
tution of  1870  provided  that  the  fee  of  land  taken  for  railroad  tracks 
should  remain  in  the  owner.  This  provision  is  found  in  the  constitu- 
tions of  but  three  other  states.  Since  the  abandonment  of  an  easement 
causes  the  property  to  revert  to  the  owner  of  the  fee,  it  has  been  urged 
that  this  provision  should  be  eliminated  and  that  the  roads  be  given 
power  to  condemn  the  fee  in  lands.  One  unfortunate  effect  of  the 
existing  provisions  is  that  in  the  carrying  out  of  general  municipal 
improvement  plans,  railroads  cannot  be  induced  nor  compelled  to  re- 
locate their  tracks  where  a relocation  would  be  desirable.  There  is  no 
other  constitutional  limitation  upon  the  power  of  the  general  assembly 
to  condemn  the  fee,  but  the  Supreme  Court  has  held  that  a statute 
which  in  general  terms  grants  the  power  to  condemn  land  does  not  au- 
thorize the  taking  of  a fee.  The  inference  is  that  the  general  assembly 
has  power  to  authorize  the  taking  of  the  fee  but  there  never  has  been 
any  express  holding  in  this  state  that  the  fee  may  be  taken.  There  is  a 


500 


possibility  that  the  Supreme  Court  may  construe  the  eminent  domain 
clause  in  the  constitution  as  preventing  the  taking  of  a fee  unless  the 
court  finds,  in  the  particular  case,  that  a fee  is  necessary.  (5)  A sep- 
arate section  was  inserted  in  the  constitution  of  1870  which  authorizes 
the  condemnation  of  the  property  and  franchises  of  corporations  and 
which  guarantees  a jury  trial  on  the  issue  of  compensation  in  pro- 
ceedings by  and  against  corporations.  This  provision  is  found  in  sev- 
eral states  but  the  Supreme  Court  of  Illinois  has  said  that  this  pro- 
vision adds  nothing  to  the  general  eminent  domain  clause.  The  elimi- 
nation of  this  clause,  however,  might  be  construed  as  affecting  the 
law  in  some  way.  (6)  The  taking  and  damaging  of  lands  for  drain- 
age purposes  was  authorized  by  a separate  provision  in  the  consti- 
tution of  1870.  The  clause  was  later  amended  so  as  to  authorize  th 
organization  of  drainage  districts,  and  the  levying  of  special  assess- 
ments to  pay  the  cost  of  such  improvements.  Similar  provisions  are 
found  in  the  constitutions  of  about  one-third  of  the  states ; in  many 
others  the  same  result  is  attainable  under  the  general  eminent  domain 
clause.  (7)  A special  provision  was  inserted  in  the  constitution  of 
1870  which  authorized  the  taking  of  land  for  roads  for  public  and 
for  private  use.  It  had  been  held,  under  the  constitution  of  1848,  tha* 
the  taking  of  land  for  a private  road  was  not  a public  use  and  that  a 
statute  which  authorized  such  a taking  was  unconstitutional.  Similar 
provisions  are  found  in  several  states. 


Construction  placed  upon  other  features  of  the  eminent  domain 
clause.  (1)  Property  is  taken  for  public  use  when  it  is  taken  by 
an  agency  of  the  state  and  actuallv  employed  by  it  in  the  discharge  of 
governmental  functions.  It  is  also  taken  for  public  use  when  the 
property  so  acquired  is  made  available  for  actual  use,  by  the  public 
or  by  a relatively  large  group  of  persons,  under  governmental  super- 
vision, in  a manner  which  is  in  furtherance  of  an  otherwise  legitimate 
governmental  function  exercised  in  the  interests  of  the  general  wel- 
fare. Public  parks  furnish  an  illustration.  Property  is  also  taken  for 
public  use  when  it  is  actually  emploved  by  private  persons  in  connec- 
tion with  enterprises  in  which  the  public  possesses  such  an  interest  that 
the  law  is  justified  in  imposing  upon  them  the  duty  to  serve  all  upon 
conditions  prescribed  by  law.  The  taking  of  property  by  public  service 
companies  is  justified  on  this  ground.  Property  is  also  taken  for 
public  use  when  it  is  actually  employed  by  private  persons  in  some 
private  enterprise,  not  a public  utility,  but  which  is  of  a nature  that 
the  interests  of  the  public  are  thereby  promoted.  The  taking  of  land 
which  is  both  for  private  and  public  use  as  a road  and  the  taking  of 
land  for  drainage  purposes  fall  within  this  group,  although  the  power 
to  take  in  these  cases  is  based  on  express  provisions  of  the  constitution 
of  Illinois.  Generally  speaking,  the  term  “public  use”  as  used  in  the 
general  eminent  domain  clause  does  not  include  such  purposes. 


501 


(2)  Property  already  devoted  to  public  use  may  be  taken  for 
other  public  uses.  It  is  for  the  law-making  body  to  declare  under 
what  circumstances  such  property  may  be  taken  for  other  uses.  Under 
a general  grant  of  the  power  of  eminent  domain  the  courts  hold  that 
property  already  devoted  to  public  use  may.  be  taken  only  when  the 
new  use  will  be  a different  use.  Except  in  the  typical  cases  of  the 
projection  of  railways  across  streets  and  other  railways  and  of  streets 
across  railways,  the  courts  are  strongly  inclined  to  hold  that  a general 
grant  of  power  to  condemn  does  not  authorize  a taking  of  property  al- 
ready devoted  to  public  use. 

One  situation  in  this  state  calls  for  special  mention.  In  the  case 
of  South  Park  Commissioners  v.  Ward,1  the  court  held  that  an  act 
of  the  General  Assembly  was  unconstitutional  which  expressly  author- 
ized the  South  Park  Commissioners  to  condemn  the  rights  of  property 
owners  along  Michigan  Avenue,  to  have  Grant  Park  kept  free  from 
buildings,  which  rights  were  acquired  under  a dedication  to  public 
use  of  the  land  comprising  Grant  Park  under  restrictions  imposed  by 
the  dedicators — the  Canal  Commissioners  and  the  United  States — and 
accepted  by  the  City  of  Chicago ; the  statute  also  authorized  the  South 
Park  Commissioners  to  permit  the  construction,  in  the  park,  of  any 
museum  then  located  in  a public  park.  The  decision  was  strongly  dis- 
sented from  by  three  members  of  the  court.  Some  commentators  upon 
the  case  justify  the  decision  upon  the  ground,  (a)  that  the  state  had 
no  power  to  rid  itself  of  these  restrictions  because  they  were  imposed 
by  the  United  States  ; and  (b)  it  is  possible  that  the  decision  means  that 
a governmental  agency  cannot  be  authorized  to  condemn  land  for  the 
purpose  of  aiding  a private  corporation,  the  Field  Museum,  which  did 
not  itself  possess  the  power  of  emjnent  domain.  The  decision  was 
not  based  upon  either  of  these,  grounds.  Other  comments  upon  the 
case  are  to  the  effect  that  it  is  without  precedent  in  the  law  of  eminent 
domain.  The.importance  of  the  case  lies  in  the  fact  that  the  decision 
may  be  interpreted  as  meaning  that  in  all  cases  where  property  is  dedi- 
cated to  public  use  under  restrictions  and  accepted  by  the  state  or  by 
any  of  its  agencies,  the  state  is  powerless  to  remove  the  restrictions, 
even  though  the  necessity  therefor  may  have  ceased  because  of  changed 
conditions.  Such  a result  as  this  might  often  prove  to  be  an  obstacle  of 
a serious  nature. 

(3)  A taking  of  property  includes  the  taking  of  the  fee  and  of 
easements  in  land ; the  imposition  of  additional  servitudes  upon  land : 
easements  in  which,  for  specified  purposes,  have  been  previously  ac- 
quired ; the  taking  of  riparian  rights ; the  removal  of  support  of  land, 
and  all  direct  physical  injuries  to  the  property,  such  as  the  overflowing 
of  lands.  When  part  of  a tract  is  taken  and  the  remaining  part  is 
injuriously  affected,  the  consequential  injury  constitutes  a taking. 
These  rules  have  remained  substantially  unchanged  under  all  three  con- 
stitutions and  are  practically  the  same  as  in  other  states. 

(4)  The  damaging  of  property  consists  in  the  infliction  of  special 
injury  to  rights,  usually  of  a non-physical  character,  the  effect,  in 


1 248  111.  299;  (1911). 


502 


general,  being  to  impose  liability  for  the  damaging  of  property  for 
public  use  to  the  same  extent  as  is  imposed  upon  private  persons  at 
common  law  for  causing  similar  injuries.  There  is  no  right  to  com- 
pensation for  speculative  damage  or  for  general  damage,  such  as  is 
sustained  by  the  community  in  common,  or  for  the  destruction  or 
damaging  of  property  under  the  police  power.  Damage  inflicted  under 
the  police  power  is  usually  of  a general  character  and  therefore  no 
right  to  compensation  exists,  or  where  special,  as  in  the  case  of  the 
killing  of  diseased  animals,  there  is  no  constitutional  right  to  compen- 
sation on  the  theory  that  no  right,  which  is  superior  to  the  public 
needs,  has  been  infringed.  These  rules  are  practically  the  same  in 
other  states  where  the  damage  clause  is  found  in  the  eminent  domain 
provision. 

(5)  The  measure  of  compensation  in  case  of  a taking  is  the  fair 
cash  market  value  of  the  property  taken. 

(6)  The  measure  of  compensation  where  part  of  a tract  is  taken 
and  the  part  not  taken  is  damaged,  is  the  fair  cash  market  value  of  the 
part  taken,  plus  the  difference  between  the  fair  cash  market  value  of 
the  part  not  taken  before  and  after  the  taking. 

(7)  The  measure  of  compensation  when  part  of  a tract  is  taken, 
and  the  part  not  taken  is  specially  benefited,  is  the  fair  cash  market 
value  of  the  part  actually  taken.  The  special  benefit  cannot  be  set 
off  against  the  value  of  the  part  taken.  Under  the  constitutions  of 
1818  and  1848  such  special  benefit  could  be  set  off.  The  rule  in  most 
states,  either  as  a matter  of  construction  or  of  special  constitutional 
provision,  is  that,  in  takings  by  governmental  agencies,  special  benefit 
may  be  set  off  against  the  value  of  the  part  taken.  It  has  been  argued 
in  this  state,  that,  in  as  much  as  all  governmental  agencies  do  not  pos- 
sess the  power  of  levying  special  assessments,  the  rule  in  Illinois 
should  be  changed  so  as  to  allow  the  set-off  of  benefits  by  govern- 
mental agencies. 

(8)  Where  part  of  a tract  is  taken,  the  elements  of  special  bene- 
fit to  the  part  not  taken  may  be  considered  as  against  special  damage 
to  such  part  in  order  to  determine  whether  the  parcel  not  taken  has 
been  specially  damaged  or  specially  benefited. 

(9)  Where  no  property  has  been  taken  and  where  the  right  to 
compensation  is  based  on  the  ground  that  the  property  has  been 
“damaged”,  elements  of  special  benefit  may  also  be  taken  in  considera- 
tion, i.e.  set-off  against  special  damage,  in  determining  whether  the 
tract  has  been  damaged. 

(10)  A taking  of  property  will  be  enjoined  until  compensation  is 
paid,  although  after  compensation  has  been  ascertained  in  the  con- 
demnation proceeding,  the  condemning  authority  may  enter  into  the 
temporary  possession  of  the  premises  upon  giving  the  required  appeal 
bond.  This  rule  has  always  been  in  force  in  Illinois,  although  none 
of  the  constitutions  have  expressly  required  prepayment.  The  At- 
torney General  has  ruled  that  this  requirement  does  not  apply  to 
takings  by  the  state  in  its  corporate  capacity.  The  rule  in  most  states 
where  there  exists  no  express  provision  on  the  subject  is  that  the 
giving  of  security  is  alone  sufficient  to  justify  a taking.  A right  to 


503 


sue  the  state  or  other  governmental  agency  is  usually  deemed  an  ade- 
quate security  in  other  states,  but  in  takings  by  private  corporations  a 
deposit  of  money  in  court  or  the  giving  of  a bond  approved  by  the 
court  is  required.  In  many  states  there  are  special  constitutional  pro- 
visions relating  to  the  time  of  payment.  A few  states  require  pre- 
payment in  all  cases.  A greater  number  require  prepayment  only  in 
takings  by  private  corporations.  Several  states  require  either  pre- 
payment or  deposit,  or  prepayment  or  security. 

(11)  The  damaging  of  property  will  not  be  enjoined.  There  is 
no  constitutional  right  to  prepayment.  The  owner  is  remitted  to  his 
action  at  law  to  recover  compensation  after  the  damage  has  been  in- 
flicted. In  New  York  and  a few  other  states  it  is  held  that  the  con- 
struction of  an  elevated  railroad  upon  a public  street,  the  fee  of 
which  is  in  the  public,  amounts  to  a taking  of  the  abutters’  easements 
of  light  and  air  in  the  street  and  that  therefore  the  construction  of 
the  road  will  be  enjoined  until  compensation  is  made.  In  Illinois  and 
most  states  the  construction  of  a road  under  these  circumstances  does 
not  amount  to  a taking,  but  constitutes  damage  merely.  The  abutting 
owners’  remedy  is  in  these  states  an  action  for  damages  after  the 
injury  has  been  sustained. 

(12)  Except  in  so  far  as  special  benefits  may  be  set  off  against 
special  damage  to  parcels  of  land  not  taken,  compensation  must  be  in 
money. 

(13)  The  determination  of  what  constitutes  a public  use  is  for 
the  courts.  The  question  of  the  propriety  of  delegating  the  power 
of  eminent  domain  is  for  the  legislative  branch.  The  question  of  the 
necessity  for  and  of  the  amount  of  a particular  taking  is,  in  the  first 
instance,  for  the  condemning  authority  in  which  is  vested  a wide  range 
of  discretion,  but  this  discretion  is  subject  to  review  by  the  courts. 
In  a few  states  there  exist  constitutional  provisions  which  make  the 
question  of  the  necessity  for  a taking  one  for  the  jury. 


Extension  of  the  power  of  eminent  domain.  In  recent  years  a 
number  of  constitutional  provisions  have  been  adopted  which  extend 
state  functions.  In  many  instances  the  power  of  eminent  domain 
is  not  expressly  conferred,  in  others  this  power  is  designated  as  a 
means  of  accomplishing  the  new  objects.  These  provisions,  in  general, 
relate  to  the  conservation  of  natural  resources,  to  the  conduct  of  cer- 
tain types  of  business  enterprises,  and  to  the  accomplishment  of  ob- 
jects which  are  generally  the  subject  of  police  regulations  only.  Con- 
stitutional provisions  which  expressly  authorize  the  use  of  the  power 
of  eminent  domain  relate  to  the.  conservation  of  natural  resources, 
the  acquisition  of  public  utilities  by  cities  and  to  housing  projects. 


Excess  condemnation.  The  proposal  has  been  made  to  confer 
upon  agencies  of  the  state,  chiefly  municipalities,  the  power  to 


504 


condemn  land  in  excess  of  that  actually  needed  for  the  purpose 
of  a particular  improvement.  The  power  of  excess  condemnation, 
as  thus,  defined,  in  general,  may  be  employed  with  three  distinct 
objects  in  view. 

(1)  The  power  may  be  exercised  in  connection  with  the  open- 
ing or  widening  of  streets  to  condemn  an  amount  of  land  lying 
outside  the  new  street  sufficient  to  make  suitable  building  sites 
which  may  front  on  the  new  thoroughfare.  Lot  remnants,  which 
are  invariably  left  in  such  cases,  are  thus  united  with  the  property 
in  the  rear.  The  history  of  the  lot  remnant  problem  shows  that 
in  the  majority  of  instances  the  lot  remnant  when  left  in  private 
ownership  will  not  be  promptly  attached  to  the  rear  property.  The 
result  is  that  the  usefulness  of  the  street  is  greatly  impaired'.  The 
practice  of  condemning  such  areas  is  common  in  Europe.  The 
power  to  condemn  land  in  excess,  in  this  country,  cannot  be  grant- 
ed by  statute.  Constitutional  amendments  conferring  the  power 
have  been  adopted  in  Massachusetts,  Ohio,  Wisconsin,  New  York 
and  Rhode  Island.  A proposed  amendment  of  this  character  failed 
of  adoption  in  New  Jersey.  The  city  of  Chicago  is  chiefly  inter- 
ested in  this  proposal.  Civic  bodies  in  Chicago  strongly  urge  its 
adoption.  Where  this  question  has  been  investigated  by  legislative 
committees  or  by  individuals  the  conclusions  ’reached  have  been 
favorable. 

(2)  It  is  also  proposed  to  employ  the  power  of  excess  con- 
demnation for  the  purpose  of  controlling  the  character  of  neigh- 
borhoods surrounding  a newly  constructed  improvement.  In  con- 
nection with  the  opening  or  widening  of  streets,  the  construction 
of  public  buildings  and  the  laying  out  of  parks,  the  proposal  is  to 
allow  the  city  to  condemn  areas,  of  land  abutting  on  such  improve- 
ments, and  after  taking  the  land  in  fee  the  propertv  is  to  be  sold 
to  private  persons  under  restrictions  in  the  deeds.  The  size,  type, 
location,  and  use  of  buildings  in  the  area  taken  over  are  thus  to  be 
made  subject  to  the  control  of  the  condemning  authority.  Con- 
stitutional amendments  which  authorize  this  use  of  the  power  of 
eminent  domain  have  been  adopted  in  Ohio  and  Wisconsin,  but 
such  proposals  have  failed  of  adoption  in  California  and  New  York. 
In  all  of  these  cases  the  amendments  were  so  drafted  as  to  author- 
ize a taking  beyond  that  which  was  actually  necessary  for  the 
accomplishment  of  the  objects  sought.  The  use  of  eminent  domain 
for  this  purpose  is  common  in  Europe.  Commissions  in  this 
country  which  have  investigated  this  aspect  of  excess  condemna- 
tion generally  favor  it.  Individual  writers  usually  take  the  same 
position,  though  it  is  thought  by  some  that  the  power  would  not 
be  properlv  exercised,  that  it  would  be  too  uncertain  a financial 
venture  for  the  city,  and  that  the  police  power  is  adequate. 

(3)  The  proposal  has  also  been  made  to  employ  excess  con- 
demnation for  the  purpose  of  recouping  the  cost  of  improvements. 
Land  which  had  been  or  would  be  enhanced  in  value  by  reason 
of  the  improvement  would  be  taken  over  bv  the  city  and  later  sold 
for  the  purpose  of  meeting  the  cost  of  an  improvement  or  for  the 


505 


purpose  of  making  a profit.  The  policy  of  condemning  land 
for  purposes  of  recouping  cost  has  never  been  adopted  in 
this  country.  It  has  been  used  extensively  in  European  countries, 
but  has  not  proved  to  be  a financial  success.  Generally,  the  city 
has  lost  money  on  such  ventures.  The  property  taken  over  has 
not  sold  for  as  much  as  was  anticipated.  The  practice,  of  levying 
special  assessments  is  not  common  in  Europe,  but  this  method  of 
meeting  the  cost  of  public  improvements  is  being  looked  upon  with 
greater  favor.  In  this  country,  where  the  practice  of  levying 
special  assessments  has  proved  to  be  a success,  the  use  of  excess 
condemnation  for  recouping  cost  is  not  favored.  The  financial  risk  is 
deemed  too  great.  In  every  state  where  a proposed  constitutional 
provision  has  been  worded  broadly  enough  to  authorize  the  taking 
of  land  for  resale  for  the  purpose  of  intercepting  the  increment  of 
value  added  by  the  improvement,  the  proposal  has  been  defeated. 


506 


APPENDIX  NO.  1.  REFERENCES. 


Massachusetts  Constitutional  Convention,  1917.  Bulletin  No.  19. 
Excess  Condemnation. 

Commercial  Club  of  Chicago,  Plan  of  Chicago,  with  a report  on 
the  legal  aspects  of  the  city  plan,  by  Walter  L.  Fisher.  1909. 

Chicago  Bureau  of  Public  Efficiency,  Excess  Condemnation.  1918. 

Nichols,  Philip,  The  Law  of  Eminent  Domain.  1917. 

Cushman,  R.  E.  Excess  Condemnation.  New  York.  1917. 

Massachusetts  Legislative  Committee  on  the  Right  of  Eminent 
Domain,  Report  of.  Massachusetts  House  Documents  Nos.  288 
and  1096.  1904. 

Shurtleff,  Flavel  and  Olmsted,  F.  L.  Carrying  out  the  City  Plan. 
New  York.  1914. 

Swan,  Herbert  S.  Excess 'Condemnation,  a report  of  the  commit- 
tee on  Taxation  of  the  City  of  New  York,  with  a report  pre- 
pared by  Herbert  S.  Swan  for  the  National  Municipal  League, 
New  York.  1915. 


507 


APPENDIX  NO.  2.  ILLINOIS  EMINENT  DOMAIN 
PROVISIONS. 


Art.  II,  Sec.  13.  Private  property  shall  not  be  taken  or  damaged 
for  public  use  without  just  compensation.  Such  compensation,  when 
not  made  by  the  State,  shall  be  ascertained  by  a jury,  as  shall  be  pre- 
scribed by  law.  The  fee  of  land  taken  for  railroad  tracks,  without 
consent  of  the  owners  thereof,  shall  remain  in  such  owners,  subject 
to  the  use  for  which  it  is  taken. 

Art.  IV,  Sec.  30.  The  general  assembly  may  provide  for  estab- 
lishing and  opening  roads  and  cartways,  connected  with  a public  road, 
for  private  and  public  use. 

Art.  IV,  Sec.  31.  The  general  assembly  may  pass  laws  permit- 
ting the  owners  of  lands  to  construct  drains,  ditches  and  levees  for 
agricultural,  sanitary  or  mining  purposes,  across  the  lands  of  others, 
and  provide  for  the  organization  of  drainage  districts,  and  vest  the 
corporate  authorities  thereof  with  power  to  construct  and  maintain 
levees,  drains  and  ditches  and  to  keep  in  repair  all  drains,  ditches  and 
levees  heretofore  constructed  under  the  laws  of  this  state,  by  special 
assessments  upon  the  property  benefited  thereby.  (As  amended,  1878). 

Art.  XI,  Sec.  14.  The  exercise  of  the  power  and  the  right  of 
eminent  domain  shall  never  be  so  construed  or  abridged  as  to  prevent 
the  taking,  by  the  general  assembly,  of  the  property  'and  franchises 
of  incorporated  companies  already  organized,  and  subjecting  them  to 
the  public  necessity  the  same  as  of  individuals.  The  right  of  trial  by 
jury  shall  be  held  inviolate  in  all  trials  of  claims  for  compensation, 
when,  in  the  exercise  of  the  said  right  of  eminent  domain,  any  incor- 
porated company  shall  be  interested  either  for  or  against  the  exercise 
of  said  right. 


508 


APPENDIX  NO.  3.  CONSTITUTIONAL  AMENDMENTS 
EXTENDING  POWER  OF  EMINENT  DOMAIN. 


1.  Massachusetts. 

Amendment  of  1911,  Art.  XXXIX  of  Amendments.  The  legis- 
lature may  by  special  acts  for  the  purpose  of  laying  out,  widening  or 
relocating  highways  or  streets,  authorize  the  taking  in  fee  by  the 
Commonwealth,  or  by  a county,  city  or  town,  of  more  land  and  prop- 
erty than  are  needed  for  the  actual  construction  of  such  highway  or 
street ; provided,  however,  that  the  land  and  property  authorized  to  be 
taken  are  specified  in  the  act  and  are  no  more  in  extent  than  would  be 
sufficient  for  suitable  building  lots  on  both  sides  of  such  highway  or 
street,  and  after  so  much  of  the  land  or  property  has  been  appropriated 
for  such  highway  or  street  as  is  needed  therefor,  may  authorize  the 
sale  of  the  remainder  for  value  with  or  without  suitable  restrictions. 

Amendment  of  1915,  Art.  XLIII  of  Amendments.  The  general 
court  shall  have  power  to  authorize  the  commonwealth  to  take  land  and 
to  hold,  improve,  subdivide,  build  upon  and  sell  the  same,  for  the 
purpose  of  relieving  congestion  of  population  and  providing  homes  for 
citizens ; provided,  however,  that  this  amendment  shall  not  be  deemed 
to  authorize  the  sale  of  such  land  or  buildings  at  less  than  the  cost 
thereof. 

Amendment  of  1918,  Art.  XLIX  of  Amendments.  The  con- 
servation, development  and  utilization  of  the  agricultural,  mineral, 
forest,  water  and  other  natural  resources  of  the  commonwealth  are 
public  uses,  and  the  general  court  shall  have  power  to  provide  for  the 
taking,  upon  payment  of  just  compensation  therefor,  of  lands  and 
easements  or  interests  therein,  including  water  and  mineral  rights,  for 
the  purpose  of  securing  and  promoting  the  proper  conservation,  de- 
velopment, utilization  and  control  thereof,  and  to  enact  legislation 
necessary  or  expedient  therefor. 

Art.  L.  of  Amendments.  Advertising  on  public  ways,  in  public 
places,  and  on  private  property  within  public  view  may  be  regulated 
and  restricted  by  law. 

Art.  LX  of  Amendments.  The  general  court  shall  have  power  to 
limit  buildings  according  to  their  use  or  construction  to  specified  dis- 
tricts of  cities  and  towns. 


2.  New  York,  1913. 

Art.  1,  Sec.  7.  The  legislature  may  authorize  cities  to  take  more 
land  and  property  than  is  needed  for  actual  construction  in  the  laying 


509 


out,  widening,  extending  or  relocating  parks,  public  places,  highways 
or  streets ; provided,  however,  that  after  the  additional  land  and  prop- 
erty so  authorized  to  be  taken  shall  be  no  more  than  sufficient  to  form 
suitable  builOtng  sites  abutting  on  such  park,  public  place,  highway  or 
street.  After  so  much  of  the  land  and  property  has  been  appropriated 
for  such  park,  public  place,  highway  or  street  as  is  needed  therefor, 
the  remainder  may  be  sold  or  leased. 


3.  Rhode  Island,  1916. 

Art.  XVII  of  amendments.  The  general  assembly  may 
authorize  the  acquiring  or  taking  in  fee  by  the  state,  or  by  any 
cities  or  towns,  of  more  land  and  property  than  is  needed  for  actual 
construction  in  the  establishing,  laying  out,  widening,  extending, 
or  re-locating  of  public  highways,  streets,  places,  parks  or  park- 
ways : Provided,  however,  that  the  additional  land  and  property 

so  authorized  to  be  acquired  or  taken  shall  be  no  more  in  extent 
than  would  be  sufficient  to  form  suitable  building  sites  abutting  on 
such  public  highway,  street,  place,  park  or  parkway.  After  so 
much  of  the  land  and  property  has  been  appropriated  for  such 
public  highway,  street,  place,  park  or  parkway  as  is  needed  there- 
for, the  remainder  may  be  held  and  improved  for  any  public 
purpose  or  purposes,  or  may  be  sold  or  leased  for  value  with  or 
without  suitable  restrictions,  and  in  case  of  any  such  sale  or  lease 
the  person  or  persons  from  whom  such  remainder  was  taken  shall 
have  the  first  right  to  purchase  or  lease  the  same  upon  such  terms 
as  the  state  or  city  or  town  is  willing  to  sell  or  lease  the  same. 


4.  Ohio,  1912. 

Art.  XVIII,  Sec.  10.  A municipality  appropriating  or  other- 
wise acquiring  property  for  public  use  may  in  futherance  of  such 
public  use  appropriate  or  acquire  an  excess  over  that  actually  to 
be  occupied  by  the  improvement,  and  may  sell  such  excess  with 
such  restrictions  as  shall  be  appropriate  to  preserve  the  improve- 
ment made.  Bonds  may  be  issued  to  supply  the  funds  in  whole 
or  in  part  to  pay  for  the  excess  property  so  appropriated  or  other- 
wise acquired,  but  said  bonds  shall  be  a lien  only  against  the 
property  so  acquired,  for  the  improvement  and  excess,  and  they 
shall  not  be  a liability  of  the  municipality  nor  be  included  in  any 
limitation  of  the  bonded  indebtedness  of  such  municipality  pre- 
scribed by  law. 


5.  Wisconsin,  1912. 

Art.  XI,  Sec.  3a.  The  State  or  any  of  its  cities  may  acquire  by 
gift,  purchase,  or  condemnation  lands  for  establishing,  laying 


510 


out,  widening,  enlarging,  extending  and  maintaining  memorial 
grounds,  streets,  squares,  parkways,  boulevards,  parks,  playgrounds, 
sites  for  public  buildings,  and  reservations  in  and  about  and  along 
and  leading  to  any  or  all  of  the  same ; and  after  the  establishment, 
lay  out,  and  completion  of  such  improvements,  may  convey  any 
such  real  estate  thus  acquired  and  not  necessary  for  such  improve- 
ments, with  reservations  concerning  the  future  use  and  occupation 
of  such  real  estate,  so  as  to  protect  such  public  works  and  im- 
provements, and  their  environs,  and  to  preserve  the  view,  appear- 
ance, light,  air,  and  usefulness  of  such  public  works. 


511 


APPENDIX  NO.  4.  PROPOSED  AMENDMENTS 
REJECTED  BY  PEOPLE. 


1.  New  Jersey,  1915. 

The  legislature  may  authorize  the  state,  or  counties,  cities,  towns, 
boroughs  or  other  municipalities,  or  any  board,  governing  body  or 
commission  of  the  same,  to  take  more  land  and  property  than  is 
needed  for  actual  construction  in  the  laying  out,  widening,  extending 
or  re-locating  the  parks,  public  places,  highways  or  streets ; provided, 
however,  that  the  additional  lands  and  properties  so  authorized  to  be 
taken  shall  be  no  more  than  sufficient  to  form  suitable  building  sites 
abutting  on  such  park,  public  place,  highway  or  street,  after  so  much 
of  the  land  or  property  taken  has  been  appropriated  for  such  park, 
public  place,  highway  or  street  as  is  needed  therefor,  the  remainder 
may  be  sold  or  leased  and  reasonable  restrictions  imposed. 


2.  California,  1913,  1915,  1918. 

The  State  or  any  county,  city  and  county  or  incorporated  city  or 
town,  taking  or  appropriating  property  within  the  limits  thereof  for 
public  use  for  any  proposed  public  improvement  may  also  take  and 
appropriate  under  the  power  of  eminent  domain,  additional,  adjoining 
@r  neighboring  property  within  the  limits  thereof,  in  excess  of  that 
actually  to  be  devoted  to  or  occupied  by  the  proposed  improvement, 
and  such  additional  land  so  taken  shall  be  deemed  to  be  taken  for 
public  use.  The  estates  in  such  additional  property  so  taken  shall  be 
a fee  simple  estate,  and  such  additional  property  may  be  sold,  leased  or 
otherwise  disposed  of  in  whole  or  in  part,  under  such  terms  and  re- 
strictions as  may  be  appropriate  to  preserve  or  further  the  improve- 
ment made  or  proposed  to  be  made.  For  the  purpose  of  acquiring, 
constructing,  enlarging  or  improving  a public  park,  playground, 
boulevard,  street,  building  or  ground  therefor,  any  county,  city 
and  county,  incorporated  city  or  town  may  condemn  lands  outside  of 
its  boundaries  and  within  the  distance  of  ten  miles  therefrom,  provided 
that  no  land  within  any  other  county,  city  and  county,  incorporated 
city  or  town  shall  be  taken  without  the  consent  to  be  given  in  any 
manner  that  may  be  provided  by  law.  The  conditions  under  which 
such  additional  property  may  be  taken  or  appropriated,  the  means  and 
method  of  providing  payment  therefor  and  the  terms  and  restrictions 
under  which  such  property  may  be  sold,  leased,  or  otherwise  disposed 
of  shall  be  prescribed  by  general  law. 


512 


1918  proposal,  Sec.  20:  The  State,  any  county,  city  and  county, 

or  municipality  may  acquire,  by  eminent  domain,  the  title  in  fee  simple 
to  property  in  excess  of  that  actually  needed  for  an  improvement. 
Property  so  acquired  in  excess  of  that  actually  needed  for  such  im- 
provement, shall  be  deemed  to  be  acquired  for  a public  use.  The  pro- 
cedure for  such  acquisition  and  the  use,  sale  and  lease  or  other  dis- 
position of  property  so  acquired  shall  be  prescribed  by  general  law. 


3.  New  York,  1911. 

When  private  property  shall  be  taken  for  public  use  by  a municipal 
corporation,  additional,  adjoining  and  neighboring  property  may  be 
taken.  Property  thus  taken  shall  be  deemed  taken  for  a public  use. 


4.  Wisconsin,  1914. 

When  private  property  shall  be  taken  for  public  use  by  a munic- 
ipal corporation,  additional,  adjoining  and  neighboring  property  may 
be  taken.  Property  thus  taken  shall  be  deemed  taken  for  a public  use. 


513 


APPENDIX  NO.  5.  AMENDMENTS  PROPOSED  IN,  BUT 
NOT  SUBMITTED  BY,  LEGISLATURES. 


1.  Massachusetts,  1914. 

For  the  purpose  of  establishing  parks,  public  reservations, 
wharves,  and  docks  the  general  court  may  by  special  acts  authqrize 
the  taking  by  the  commonwealth,  or  by  a county,  city  or  town,  or  by 
a commission  authorized  by  a special  act  of  the  general  court,  of 
more  land  than  is  needed  for  the  actual  construction  of  such  parks, 
reservations,  wharves,  or  docks  provided  the  land  and  property  author- 
ized so  to  be  taken  are  specified  in  the  act ; and  after  so  much  of  the 
land  or  property  has  been  appropriated  for  such  parks,  reservations, 
wharves,  or  docks  as  is  needed  therefor,  the  commonwealth,  county, 
city,  town  or  commission,  as  the  case  may  be,  may  hold,  lease,  sell 
or  use,  with  or  without  restrictions,  the  remainder  thereof. 


2.  Pennsylvania,  1915. 

The  State,  or  any  municipality  thereof,  acquiring  or  appropriating 
property  or  rights  over  or  in  property  for  public  use,  may,  in  further- 
ance of  its  plans  for  the  acquisition  and  public  use  of  such  property  or 
rights,  and  subject  to  such  restrictions  as  the  legislature  may  from 
time  to  time  impose,  appropriate  an  excess  of  property  over  that  ac- 
tually to  be  occupied  or  used  for  public  use,  and  may  thereafter  sell 
or  lease  such  excess,  and  impose  on  the  property  so  sold  or  leased 
any  restrictions  appropriate  to  preserve  or  enhance  the  benefit  to  the 
public  of  the  property  actually  occupied  or  used. 


CONSTITUTIONAL  CONVENTION 


BULLETIN  No.  8 

The  Legislative  Department 


Compiled  and  Published  by  the 

LEGISLATIVE  REFERENCE  BUREAU 

Springfield,  Illinois 


fPrinted  by  authority  of  the  State  of  Illinois.] 


LEGISLATIVE  REFERENCE  BUREAU. 


Governor  Frank  O.  Lowden,  Chairman. 
Senator  Edward  C.  Curtis,  Grant  Park. 

Senator  Richard  J.  Barr,  Joliet. 

» 

Representative  Edward  J.  Smejkal,  Chicago. 
Representative  William  P.  Holaday,  Danville. 


E.  J.  Verlie,  Secretary. 

W.  F.  Dodd,  in  charge  collection  of  data  for 
constitutional  convention. 


k 


TABLE  OF  CONTENTS. 


PAGE. 

I.  Summary  521 

II.  Historical  outline  of  development  in  Illinois 522 

Organization  and  apportionment 522 

Powers  526 

III.  Organization  of  the  two  houses 528 

Two-chambered  legislature 528 

Size  of  legislative  bodies 532 

Terms  and  sessions 533 

Qualifications,  privileges  and  disabilities 536 

Compensation  536 

IV.  Cumulative  voting  and  proportional  representation  . 538 

Cumulative  voting 538 

Majority  elections.. 541 

Proportional  representation 542 

V.  Apportionment  ..v 545 

VI.  Cook  county  representation 548 

Constitution  of  1818 548 

Constitution  of  1848 548 

Constitution  of  1870 .540 

Proposals  for  limitation 550 

Limitations  in  other  states 550 

VII.  Legislative  procedure 555 

Reading  at  large  on  three  different  days 555 

Printing  of  bills 556 

Subject  matter  and  title 557 

Amendment  by  reference 557 

Time  when  laws  take  effect 558 

Practical  operation  of  Illinois  legislative  system 560 

Duplicate  introduction 560 

Committees  562 


CONTENTS— Concluded. 

VII.  Legislative  procedure — concluded. 

Distribution  of  committee  work 564 

Committee  proceedings 564 

Careful  examination,  etc 565 

End  of  the  session  rush 566 

Rules  of  procedure  in  constitutions 569 

VIII.  Relations  of  the  legislative  department  to  other 

PARTS  OF  THE  GOVERNMENTAL  ORGANIZATION 570 

Special  sessions 570 

Veto  power 570 

General  Assembly  as  a canvassing  body 573 

Legislative  appointments 573 

Legislative  functions  in  connection  with  the  appoint- 
ment and  removal  of  officers 574 

Power  of  courts  with  reference  to  legislation.  576 

IX.  Legislative  powers 578 

X.  Analysis  of  present  legislative  organization  and 

work  588 

XI.  Conclusions  592 

XII.  More  detailed  problems  in  Illinois 598 

Cumulative  voting  system 598 

Limitation  of  representation 598 

Initiative  and  referendum.  . 599 

■ 

Relation  of  legislative  power  to  the  constitution . 599 

Amendment  by  reference 600 

Other  procedural  problems 600 

Appendix  no.  1.  References  602 

Appendix  no.  2.  Constitution  of  Illinois,  article  iv 603 


I.  SUMMARY. 


The  Illinois  General  Assembly  is  similar  in  organization  and 
powers  to  the  legislatures  of  the  other  states.  In  substantially  all  states 
the  legislatures  are  hedged  about  by  limitations  as  to  procedure  and 
powers,  in  such  a manner  as  to  make  legislation  a hazardous  task. 
In  some  states  steps  have  been  taken  toward  establishing  closer  rela- 
tions between  the  governor  and  the  legislature,  and  in  others  unsuc- 
cessful efforts  have  been  made  in  recent  years  to  change  the  form  of 
state  legislative  organization.  With  respect  to  legislative  matters 
several  types  of  problems  will  present  themselves  to  the  constitutional 
convention : 

(a)  That  as  to  whether  any  change  shall  be  made  in  the  present 
form  of  legislative  organization,  and  in  the  relations  between  the 
General  Assembly  and  the  governor. 

(b)  That  as  to  the  general  scope  of  legislative  powers.  There 
has  been  a tendency  for  many  years  to  hedge  state  legislatures  about 
by  numerous  restrictions,  and  to  frame  complex  constitutions  which 
themselves  deal  with  many  matters  of  legislative  detail. 

(c)  There  will  be  a number  of  problems  local  to  Illinois,  and 
others  having  to  do  with  changes  in  the  detail  of  the  present  constitu- 
tion. Within  this  group  the  problems  likely  to  attract  greatest  in- 
terest are  those  of  Cook  County  representation  and  of  cumulative 
voting.  Equally  important,  however,  are  the  questions  as  to  whether 
changes  shall  be  made  in  present  constitutional  provisions  with  respect 
to  amendment  by  reference,  as  to  whether  there  shall  continue  to  be 
three  readings  at  large  of  bills  in  each  house,  and  as  to  the  time  when 
laws  shall  come  into  effect. 

An  analysis  of  the  initiative  and  referendum  will  be  found  in  a 
bulletin  dealing  with  that  subject,  but  comment  is  made  in  this  bul- 
letin upon  the  relationship  of  the  initiative  and  referendum  to  the  rep- 
resentative legislature.  A discussion  of  appropriation  methods  will  be 
found  in  the  bulletin  dealing  with  state  and  local  finance. 


522 


II.  HISTORICAL  OUTLINE  OF  DEVELOPMENT  IN 

ILLINOIS. 


Organization  and  apportionment.  Illinois  began  its  career  as 
a state  with  a two-chambered  legislature  holding  biennial  regular  ses- 
sions. The  powers  conferred  upon  the  two  houses  were  substantially 
identical,  and  the  chief  distinctions  between  the  two  houses  under  the 
constitution  of  1818  were  that  the  house  was  larger  than  the  senate, 
and  that  senators  were  elected  for  a four-year  term,  one-half  retiring 
each  two  years,  whereas  members  of  the  house  were  elected  for  a 
two-year  term. 

In  the  early  history  of  the  two-chambered  legislative  system,  some 
distinction  was  made  between  the  powers  of  the  two  houses,  par- 
ticularly with  respect  to  the  initiation  of  revenue  bills ; and  a fairly 
sharp  distinction  was  also  made  as  to  the  types  of  interests  or  areas 
represented  in  each  of  the  two  houses.  Such  distinctions  appeared  in 
the  state  constitutions  adopted  from  1776  to  1780,  but  were  tending  to 
disappear  by  1818,  although  in  about  twenty  states  the  lower  house 
still  retains  the  exclusive  right  to  originate  revenue  bills,  as  does  also 
the  lower  house  of  the  federal  congress. 

The  differences  between  the  two  houses  which  appeared  in  the 
constitution  of  1818  have,  with  some  variations,  been  preserved  in  the 
later  constitutions.  The  constitution  of  1818  prescribed  the  age  of  21 
for  representatives  and  the  age  of  25  for  senators.  The  constitution 
of  1848  varied  this  requirement,  prescribing  the  age  of  25  for  repre- 
sentatives and  that  of  30  for  senators,  but  the  constitution  of  1870  re- 
turned to  the  original  rule  as  laid  down  in  1818.  With  respect  to  the 
method  of  election,  the  primary  distinction,  as  suggested  above,  is  that 
senators  are  elected  for  four  years,  and  that  since  the  beginning  of 
statehood  the  plan  has  been  adopted  of  having  one-half,  or  sub- 
stantially one-half,  of  the  senators  retire  each  two  years. 

Perhaps  the  most  essential  distinction,  however,  between  the  two 
houses  is  that  of  size.  The  constitution  of  1818  prescribed  that  the 
house  of  representatives  should  not  have  less  than  27  members,  nor 
more  than  36  members  until  the  state  reached  a population  of  100,000 ; 
and  provided  that  the  senate  have  not  less  than  one-third  nor  more 
than  one-half  the  number  of  representatives.  The  constitution  of  1848 
limited  the  senate  membership  to  25,  and  provided  a house  membership 
of  75,  which  might  be  increased  to  100  with  the  increase  of  the  state’s 
population.  ;Under  the  rule  laid  down  in  the  constitution,  however,  it 
was  provided  that*  the  number  should  be  75  until  the  state  had  a popu- 
lation of  1,000,000.  When  the  state  reached  such  a population,  five 
additional  members  might  be  provided,  and  thereafter  five  additional 


523 


members  for  each  additional  500,000  population.  Under  this  rule  the 
lower  house  increased  from  75  to  85  between  1848  and  1870. 

The  proposed  constitution  of  1862  provided  for  33  senators  and 
102  representatives,  but  with  a possible  increase  to  150  for  the  com- 
bined membership  of  the  two  houses.  The  constitution  of  1870  pro- 
vided for  the  submission  to  the  people  of  two  alternative  methods  of 
choosing  the  lower  house,  and  the  plan  of  cumulative  voting  was 
adopted,  by  which  three  members  of  the  lower  bouse ^vere  to  be  elected 
from  each  senatorial  district,  51  senatorial  districts  being  provided  by 
the  constitution  itself.  The  other  alternative  submitted  to,  but  not 
adopted  by,  the  people  would  have  permitted  a somewhat  larger  house 
of  representatives,  but  the  relationship  in  numbers  between  the  house 
and  senate  would  not  have  been  materially  different.  In  the  provisions 
of  the  constitution  of  1870  for  the  election  of  the  first  house  of  repre- 
sentatives under  that  constitution,  a temporary  apportionment  was  pro- 
vided for,  and  under  this  apportionment  the  Illinois  house  of  repre- 
sentatives reached  its  largest  size,  having  for  the  period  from  1870  to 
1872,  177  members  while  the  senate  by  the  temporary  provisions  of 
the  same  constitution  had  a membership  of  50.  In  the  first  and  second 
Illinois  general  assemblies,  the  senate  was  composed  of  14  members 
and  the  house,  of  twenty-eight  members,  and  by  1848  the  senate  mem- 
bership increased  to  40,  and  the  house  membership  to  about  three  times 
this  number.  During  the  larger  part  of  the  period  from  1848  to  1870 
the  senate  was  composed  of  25  members  and  the  house  of  75  members, 
although  from  1861  to  1870  the  house  membership  was  85. 

Under  the  constitution  of  1870  there  is  but  one  series  of  districts 
for  the  election  of  members  of  the  two  houses,  three  representatives 
being  elected  under  the  cumulative  system  from  each  senatorial  dis- 
trict. Before  1870,  however,  there  was  no  consistent  policy  with  re- 
spect to  the  maintaining  of  a single  series  of  districts,  and  from  1848 
to  1870  the  smaller  areas  for  the  election  of  members  of  the  house  of 
representatives  did  not  lie  entirely  within  the  larger  senatorial  dis- 
tricts. That  is,  the  smaller  areas  for  the  election  of  members  of  the 
house  of  representatives  in  many  cases  cut  across  the  lines  of  sena- 
torial districts.  The  plan  of  the  Illinois  constitution  of  1870  has  a dis- 
tinct advantage  in  that  it  permits  the  development  of  some  fairly 
permanent  community  interest  in  legislative  representation  within 
a particular  area.  Whether  the  cumulative  system  is  to  be  retained 
or  not  there  is  a good  deal  of  value  in  having  one  series  of  districts  for 
the  election  of  members  of  the  house  and  senate. 

Under  the  apportionment  of  1818  no  county  had  more  than  one 
senator,  and  in  one  case  two  counties  were  united  for  the  election  of  a 
senator,  but  each  county  had  at  least  one  representative.  Where  a 
county  had  more  than  one  representative  the  election  of  such  repre- 
sentatives was  from  the  county  at  large.  Under  the  apportionment 
which  became  effective  in  18211  counties  were  united  for  the  election 
of  senators  where  a single  county  was  not  entitled  to  a senator,  and 
each  county  had  members  of  the  house  of  representatives  apportioned 
to  it  separately,  each  county  having  at  least  one  representative.  This 


i Laws  1821,  p.  154.  Act  approved  Feb.  14,  1821. 


524 


plan  resulted  in  having  all  representative  areas  lie  within  the  larger  sen- 
atorial areas,  but  this  was  not  true  under  the  apportionment  of  1826. 
Under  the  reapportionment  in  force  Feb.  7,  1831, 2 representative  dis- 
tricts were  in  all  cases  embraced  within  the  limits  of  the  larger  sena- 
torial districts  for  the  same  territory.  The  apportionment  in  force 
January  14,  18363  was  the  first  to  adopt  a definite  population  basis  for 
the  apportionment  of  senators  and  representatives,  this  basis  being 
7,000  white  inhabitants  for  members  of  the  senate  and  3,000  white  in- 
habitants for  members  of  the  house.  The  apportionment  act  of  1836, 
(as  also  earlier  apportionment  acts)  set  out  the  representative  and 
senatorial  districts  in  detail.  Each  county  which  had  more  than  one 
representative  elected  its  representatives  at  large.  The  representative 
districts  were  in  each  case  under  the  apportionment  of  1836  within  the 
limits  of  the  larger  senatorial  districts,  although  Iroquois.  County  was 
authorized  to  vote  for  the  senator  to  be  elected  in  LaSalle  County,  and 
was  not  in  terms  made  a part  of  the  senatorial  district  including 
LaSalle  County.  Under  the  apportionment  of  1836  first  appeared  in 
Illinois  the  plan  of  so-called  floating  members.  The  counties  of  Craw- 
ford and  Jasper  together  at  one  election  were  to  choose  one  representa- 
tive and  at  the  next  regular  election,  two  representatives,  alternating 
from  one  representative  to  two  in  each  two-year  period. 

The  apportionment  act  in  force  February  26,  18414  also  set  out  a 
distinct  population  basis  for  the  distribution  of  members,  this  basis 
now  being  raised  to  12,000  white  inhabitants  for  members  of 
the  senate  and  4,000  white  inhabitants  for  members  of  the 
house  of  representatives.  Representative  and  senatorial  districts 
were  set  out  in  detail  in  the  apportionment  act  and  all 
representative  districts  were  within  the  lines  of  the  senatorial 
districts  covering  the  same  territory.  Districts  for  the  election  of 
representatives,  however,  were  not  uniformly  single  districts.  Some- 
times two  counties  were  combined  for  the  election  of  two  representa- 
tives and  in  some  of  these  cases,  but  not  in  all,  the  statute  provided 
that  one  of  the  two  representatives  should  be  chosen  from  each  county. 
One  case  of  “floating”  representation  occurred : Schuyler  County  was 
given  one  representative,  Brown  County,  one,  and  the  two  counties 
together,  one  additional  member.  This  type  of  floating  representation, 
it  should  be  noted,  differs  from  the  type  of  “floating”  representation 
provided  for  in  the  apportionment  of  1836,  by  which  a district  elected 
one  representative  at  one  election  and  two  representatives  at  the  next 
succeeding  election.  The  apportionment  of  1846  was  similar  in  plan 
to  that  of  1841,  but  the  basis  of  representation  was  raised  to  19,000 
white  inhabitants  for  each  senator  and  6,500  white  inhabitants  for 
each  representative. 

The  constitution  of  1848  contained  a detailed  apportionment 
of  the  state  into  25  senatorial  districts,  and  54  representative  dis- 
tricts, the  75  representatives  being  elected  from  54  districts.  In 
this  constitutional  apportionment  no  effort  was  made  to  keep 
representative  districts  within  the  larger  limits  of  senatorial  dis- 


2 Laws  1830-31,  p.  5. 

8 Laws  1835-30.  p.  268. 

4 Laws  1840-41,  p.  23. 


525 


tricts,  and  where  more  than  one  representative  was  assigned  to  a 
district  the  representatives  were  apparently  elected  at  large  from 
the  district. 

An  apportionment  act  in  force  Feb.  27,  18545  made  the  first 
apportionment  under  the  constitution  of  1848,  increasing  the  rep- 
resentative districts  to  58  but  making  no  effort  to  keep  such  dis- 
tricts within  the  same  limits  as  those  prescribed  for  the  senatorial 
districts.  An  apportionment  act  of  18616  increased  the  number  of 
representatives  to  85  and  provided  for  their  election  from  61  rep- 
resentative districts.  This  apportionment  act  made  no  effort  to 
keep  representative  districts  within  limits  of  the  larger  senatorial 
districts.  In  the  apportionments  under  the  constitution  of  1848 
there  were  two  series  of  districts  more  or  less  independent  of  each 
other  in  territorial  area — one  for  the  election  of  members  of  the  house 
of  representatives  and  the  other  for  the  election  of  members  of  the 
senate. 

With  respect  to  the  increase  in  membership  of  the  two  houses 
of  the  General  Assembly,  it  should  also  be  remarked  that  through- 
out most  of  the  history  of  Illinois  as  a state,  the  number  of  mem- 
bers in  the  two  houses  has  been  definitely  limited  by  constitutional 
provision.  Such  a limitation,  based  either  upon  population  or  upon 
a specific  limitation  of  the  number  of  members,  has  the  advantage 
of  preventing  a constant  increase  in  the  size  of  legislative  bodies. 
The  plan  has  a disadvantage,  in  that  when  certain,  areas  increase  less 
rapidly  in  population  than  does  the  state  as  a whole,  such  areas 
must  at  periodical  intervals  lose  not  only  in  proportional  represen- 
tation with  respect  to  the  rest  of  the  state,  but  also  in  the  actual 
number  of  members  which  they  elect.  There  is  no  limitation  upon 
the  number  of  members  in  the  United  States  house  of  representa- 
tives; and  in  the  apportionment  among  the  states  at  each  decennial 
reapportionment,  each  state  objects  to  having  an  actual  reduction 
in  the  number  of  its  members,  although  it  makes  (and  can 
make)  no  valid  objection  to  the  loss  of  representation  in  proportion 
to  the  rest  of  the  country,  if  it  has  been  increasing  less  rapidly  in 
population.  In  consequence  of  this  attitude  it  has  been  impossible 
to  prevent  the  increase  of  the  number  of  members  of  the  federal 
house  of  representatives  each  ten  years,  because  of  the  fact  that 
if  states  whose  population  is  slowlv  increasing  are  to  retain  the 
same  actual  number  of  representatives,  the  states  whose  popula- 
tion is  more  rapidly  increasing  must  on  the  basis  of  the  constitu- 
tional provision  obtain  a greater  number  of  actual  members.  The 
Illinois  plan  of  imposing  some  type  of  constitutional  limitation  is 
distinctlv  valuable  in  preventing  the  unnecessarv  increase  in  the 
membership  of  the  two  houses,  although  it  does  have  the  political 
disadvantage  of  forcing  a readjustment  of  areas  and  of  actually 
reducing  the  representation  of  parts  of  the  state  which  are  either 
not  increasing  in  population  or  are  increasing  less  rapidly  than  the 
rest  of  the  state. 


5 Laws  1854.  d.  8. 

« Laws  1861.  p.  16. 


526 


The  constitution  of  1818  imposed  no  conditions  upon  the 
frequency  of  apportioning  the  state  for  the  election  of  members  of 
the  house  and  senate.  The  constitution  of  1848  provided  for  a 
state  census  in  the  interval  between  federal  censuses  and  permit- 
ted reapportionment  after  either  census.  As  has  already  been 
suggested,  reapportionment  before  1870,  aside  from  those  in  the 
constitutions  themselves,  took  place  in  1821,  1826,  1831,  1836, 
1841,  1846,  1854  and  1861.  The  constitution  of  1870  prescribes  a 
reapportionment  every  ten  years  beginning  with  the  year  1871, 
and  this  provision  has  been  construed  as  limiting  the  General 
Assembly  to  a single  reapportionment  in  each  ten-year  period7  fol- 
lowing a federal  census. 

However,  the  provision  regarding  decennial  apportionments 
although  mandatory  in  form  is  necessarily  addressed  to  the  dis- 
cretion of  the  General  Assembly.  No  reapportionment  has  taken 
place  since  190]. 


Powers.  The  constitution  of  1818  imposed  substantially  no 
limits  upon  the  power  of  the  General  Assembly  and  in  fact  gave  to 
the  General  Assembly  not  only  legislative  power  but  also  a rather 
wide  appointing  power  as  well.  The  experience  of  the  state  be- 
tween 1818  and  1848  with  respect  to  state  banking  (which  was 
expressly  commanded  by  the  constitution  of  1818)  and  with  respect 
to  internal  improvements,  led  to  the  imposition  of  strict  limitations 
in  the  constitution  of  1848  upon  the  General  Assembly  with  reference 
to  these  macters.  Some  difficulties  which  had  arisen  with  respect 
to  methods  of  legislation  and  with  respect  to  local  and  private  laws 
led  to  the  imposition  of  limitations  with  reference  to  these  matters 
in  1848,  although  such  limitations  were  not  at  all  strict.  The 
constitution  of  1848  did,  however,  contain  a large  amount  of  detail 
with  respect  to  the  organization  of  the  courts  and  with  respect  to 
other  matters  and  in  this  manner  reduced  the  power  of  the  General 
Assembly  with  respect  to  such  matters.  Between  1848  and  1870, 
the  evil  of  special  legislation  became  more  pronounced  than  before 
1848,  and  the  constitution  of  1870  was  so  framed  as  practicallv  to 
destroy  the  General  Assembly’s  power  in  this  field.  Between  1848 
and  1870  also,  municipalities  of  the  state  had  incurred  large  in- 
debtedness, primarily  in  aid  of  railroads,  and  the  constitution  of 
1870  was  so  framed  as  to  prohibit  such  aid  for  the  future,  and  in 
addition  debt  limits  were  placed  upon  municipal  corporations. 

Aside  from  the  matters  discussed  above  and  the  large  mass 
of  temporarv  detail  which  had  been  placed  in  the  constitutions  of 
1848  and  1870.  the  most  important  development  with  respect  to 
legislative  authoritv  in  this  state  has  been  that  regarding  the  gov- 
ernor’s veto  ppwer.  In  the  constitution  of  1818  a veto  power  was 
vested  in  a council  of  revision  composed  of  the  governor  and  the 


7 People  v.  Hutchinson.  172  111.  486  (1898). 


527 


judges  of  the  Supreme  Court,  but  such  power  could  be  overcome 
by  a vote  of  a majority  of  the  members  elected  to  each  house  of 
the  General  Assembly.  By  the  constitution  of  1848  the  council 
of  revision  was  abolished  and  a veto  power  was  vested  in  the 
governor  subject,  however,  to  being  overcome  by  a majority  of 
the  members  elected  to  each  of  the  two  houses.  In  1870  the  gov- 
ernor’s veto  power  was  materially  increased  by  the  constitutional 
provision  that  it  should  be  overcome  only  by  a vote  of  two-thirds  of 
all  of  the  members  elected  to  each  house,  and  in  1884  his  power 
was  still  further  increased  by  the  adoption  of  a constitutional 
amendment  permitting  the  veto  of  items  in  appropriation  acts. 

Another  important  matter  bearing  upon  the  history  of  the 
legislative  department  in  Illinois  is  that  which  relates  to  the  ap- 
pointing power  of  the  General  Assembly.  Under  the  constitution 
of  18l8  this  appointing  power  was  large  and  there  were  no  limita- 
tions upon  its  extension  when  the  General  Assembly  created  new 
offices..  The  constitution  of  1848  expressly  provided  that  the  gov- 
ernor should  nominate  and,  by  and  with  the  consent  of  the  senate, 
appoint  all  officers  whose  offices  were  established  by  the  constitu- 
tion or  which  were  created  by  law  and  whose  appointment  was 
not  otherwise  provided  for ; and  to  this  provision  was  added  a 
clause  that  “no  state  officer  shall  be  appointed  or  elected  by  the 
general  assembly.”  With  the  adoption  of  this  constitutional  pro- 
vision, which  is  repeated  in  the  constitution  of  1870,  the  governor’s 
power  of  appointment  began  to  be  effective,  for  the  General 
Assembly  since  1848  has  ordinarily  vested  the  appointing  power 
in  the  governor  when  it  has  created  new  offices.  The  appointing 
power  of  the  General  Assembly  has,  therefore,  practically  disap- 
peared, and  a similar  function  in  connection  with  the  federal  gov- 
ernment disappeared  with  the  adoption  of  popular  election  of 
United  States  senators  by  the  17th  amendment  to  the  constitution 
of  the  United  States,  ratified  in  1913. 

With  respect  to  appointments  and  removals,  however,  the  power 
to  confirm  executive  appointments  has  remained  in  the  senate  through- 
out the  three  constitutions.  The  power  of  impeachment  through  the 
bringing  of  charges  by  the  house  of  representatives  and  trial  by  the 
senate  has  also  remained,  as  has  the  power  to  remove  judges  by  reso- 
lution of  the  two  houses.  In  order  to  remove  judges,  the  assent  of 
three-fourths  of  all  the  members  elected  to  each  house  is  necessary, 
whereas  the  constitution  of  1818  provided  for  removal  of  judges  upon 
the  assent  of  two-thirds  of  each  branch  of  the  General  Assembly, 
and  a somewhat  similar  provision  was  contained  in  the  constitution  of 
1848. 


528 


III.  ORGANIZATION  OF  THE  TWO  HOUSES. 


The  two-chambered  system  of  legislative  organization  has  pre- 
vailed in  all  of  the  states  of  this  country,  except  in  Pennsylvania, 
1776-1790,  Georgia  1777-1789,  and  Vermont  1777-1836.  The 'legisla- 
ture in  the  American  colonies  was  generally  composed  of  two  houses, 
the  one  house  representing  the  popular  element  in  the  colony  with 
members  chosen  from  districts  within  the  colony,  and  the  other  house 
composed  of  members  appointed  by  and  representing  the  British 
crown ; although  in  at  least  three  of  the  colonies  this  divergence  of 
representation  in  the  two  houses  did  not  exist.  With  legislative  bodies 
of  two  houses  already  in  existence,  it  was  natural  that  the  framers  of 
the  first  state  constitutions  should  continue  this  arrangement,  and  the 
organization  of  the  national  legislature  into  two  houses  (although  in 
that  case  there  was  of  course  a distinct  basis  of  representation  justify- 
ing such  representation)  has  helped  to  maintain  the  two-chambered 
legislative  organization. 


The  two-chambered  legislature.  There  has  in  this  country 
been  some  little  discussion  in  recent  years  of  the  proposal  to  adopt  a 
single-chambered  legislature,  the  arguments  for  this  proposal  being 
based  largely  upon  the  fact  that  there  is  little  actual  difference  in  the 
basis  of  representation  in  the  two  houses,  and  upon  the  further  fact 
that  two-chambered  legislative  bodies  are  cumbersome  and  to  some 
extent  ineffective.  A single-chambered  legislature  was  proposed  by 
constitutional  amendment  in  Oregon  in  1912  and  1914,  in  Oklahoma 
in  1914,  and  in  Arizona  in  1916.  All  of  these  proposed  amendments 
have  failed  of  adoption/although  upon  the  amendment  in  Oklahoma 
in  1914  there  were  about  94,000  affirmative  votes  as  against  71,000 
negative  votes.  Governor  Hodges  of  Kansas  in  a message  to  the 
legislature  of  that  state,  on  March  10,  1913,  urged  the  abolition  of  the 
bicameral  system  and  said: 

“Two  years  ago  I suggested  a single  legislative  assembly  of  thirty 
members  from  thirty  legislative  districts.  I am  now  inclined  to  believe 
that  this  number  is  too  large,  and  that  a legislative  assembly  of  one,  or 
at  most  two,  from  each  congressional  district  would  be  amply  large. 
My  judgment  is  that  the  governor  should  be  ex-officio  a member  and 
presiding  officer  of  this  assembly,  and  that  it  should  be  permitted  to 
meet  in  such  frequent  and  regular  or  adjourned  sessions  as  the  ex- 
igencies of  the  public  business  may  demand ; that  their  terms  of  office 
be  for  four  or  six  years,  and  that  they  be  paid  salaries  sufficient  to 
justify  them  in  devoting  their  entire  time  to  the  public  business.” 


529 


Governor  Hodges’  proposal  is,  of  course,  an  extreme  one,  even 
with  respect  to  the  question  of  adopting  a single-chambered  legislature, 
for  he  proposed  not  merely  the  adoption  of  a single-chambered  legis- 
lature but  also  that  this  single-chambered  legislature  should  be  a small 
group  of  more  or  less  permanent  expert  legislators.  The  proposals  in 
Oregon,  Arizona  and  Oklahoma  did  not  go  so  far  as  this,  and  no  plan 
such  as  that  suggested  by  Governor  Hodges  has  been  submitted  in  any 
state.  The  plan  submitted  in  Oregon  in  19121  contemplated  a single- 
chambered  legislature,  of  which  the  governor  should  be  a member 
and  of  which  minority  candidates  for  the  governorship  should 
also  be  members  with  voting  power  proportionate  to  the  votes 
they  received  as  candidates.  The  Oregon  plan  contemplated  that 
the  single  legislative  body  should  consist  of  sixty  elective  members 
with  terms  of  four  years,  and  this  single  legislative  body  with  the 
governor  as  a member  was  to  be  subject  to  the  initiative  and  the 
referendum  in  that  state. 

In  advocacy  of  a single-chambered  legislature  several  argu- 
ments have  been  made.  It  is  said  that  the  present  state  legislative 
organization  is  extremely  cumbersome  and  that  such  a cumber- 
some organization  is  not  necessaty  for  a legislature  with 
powers  which  are  distinctly  subordinate  to  the  powers  of 
the  federal  government.  It  has  been  urged  that  in  many 
states  members  of  one  house  work  with  the  members  of  the 
other,  so  as  to  defeat  legislation,  without  its  being  possible  to 
fix  the  responsibility  for  such  action,  and  this  has,  of  course,  been 
the  case  occasionally  in  the  states.  It  is  true,  of  course,  that  re- 
sponsibility for  action  in  passing  legislation  or  for  inaction  in 
failing  to  pass  legislation  is  difficult  to  place,  and  that  the  bicam- 
eral system  makes  the  difficulty  greater  than  it  might  be  if  there 
were  a more  direct  responsibility  in  a single-chambered  body. 

It  is  also  urged  that  bills  passed  by  one  house  of  the  General 
Assembly  are  in  most  cases  passed  as  a matter  of  course  without 
amendment  in  the  other  house,  and  there  seems  some  basis  for 
this  argument,  as  indicated  by  careful  studies  made  in  the  state  of  New 
York  and  ill  some  other  states.2  This  statement  does  not  have  direct 
application  to  Illinois,  however.  An  examination  of  the  legislative 
work  of  Illinois  covering  the  sessions  of  1907,  1909,  1911  and  1913, 
indicates  that  each  house  of  the  General  Assembly  does  exercise  a 
fairly  decisive  influence  in  defeating  almost  one  out  of  five  of  the 
bills  passed  by  the  other  house.  The  influence  of  each  house  in 
Illinois  in  preventing  the  adoption  of  bills  passed  by  the  other 
defeats  more  legislation  than  does  the  governor’s  veto,  although 
the  veto  power  has  been  vigorously  exercised  in  this  state  in  recent 
years.  For  the  legislative  sessions  of  1917  and  1919  in  this  state 
the  following  statement  indicates  the  influence  of  one  house  in 
defeating  measures  which  have  passed  the  other: 

1 Public  Policy  Pamphlet  of  Oregon.  1912. 

2 Colvin,  D.  L.,  Bicameral  Principle  in  the  New  York  Legislature,  New  York, 
1913.  Haines,  Lynn,  The  Minnesota  Legislature  of  1911.  Minneapolis,  1911. 
Hichborn.  Story  of  the  Session  of  the  California  Legislature  of  1913  San  Fran- 
cisco, 1913. 


530 


Bills  1917  1919 

House  bills  passed  the  House..’ 324  261 

House  bills  passed  the  Senate 271  228 

Senate  bills  passed  ihe  Senate 239  320 

Senate  bills  passed  the  House 137  242 


The  larger  proportion  of  bills  passed  in  one  house  which  failed  in 
the  other  failed  because  of  inaction  of  the  other  house  rather  than 
because  of  an  actual  negative  vote,  and  this  should  probably  be  taken 
into  consideration  as  a mitigation  of  the  influence  of  one  house  upon 
the  work  of  the  other.  It  should  also  be  borne  in  mind  that  it  is 
customary  in  Illinois  to  introduce  the  same  measure  in  each  house  at 
the  same  time.  In  1917,  out  of  1041  bills  introduced  into  the  house 
and  612  bills  introduced  into  the  senate,  230  were  identical  bills.  In 
many  cases  such  identical  bills  will  pass  each  house  as  introduced  in 
that  house,  although  they  are  counted  as  two  separate  bills.  The  bill 
passed  by  one  house  would  then  be  passed  by  the  other,  and  a dupli- 
cate bill  would  be  dropped  in  each  such  case.  It  should  also  be  borne 
in  mind  that  a large  number  of  the  duplicate  bills  introduced  relate 
to  appropriations  and  that  in  recent  years  an  effort  has  been  made 
to  consolidate  minor  specific  appropriation  bills  into  larger  bills,  so 
that  the  actual  number  of  bills  which  passed  one  house  and  which  did 
not  pass  the  other  may  really  upon  analysis  have  little  bearing  upon 
the  influence  of  one  house  with  respect  to  the  work  of  the  other. 

With  respect  to  the  influence  of  one  house  upon  the  work  of  the 
other,  the  most  decisive  consideration  is  that  as  to  the  extent  to  which 
bills  passed  by  one  house  are  amended  and  passed  in  the  other  house, 
and  finally  become  law  either  as  so  amended  or  with  changes  resulting 
from  the  action  of  the  second  house.  A close  study  of  the  work  of  the 
Illinois  General  Assembly  indicates  that  a large  number  of  the  laws 
enacted  by  the  two  houses  are  passed  with  amendments  proposed  in 
the  house  which  last  acts  upon  them.  It  is  substantially  impossible 
to  work  out  a statistical  table  illustrating  the  influence  of  one  house 
upon  the  bills  passed  by  the  other  house,  but  this  influence  should  be 
borne  in  mind  in  connection  with  the  whole  problem  of  the  proposal 
for  a single-chambered  legislative  body. 

With  respect  to  the  work  of  legislative  bodies  in  this  country, 
it  should  also  be  said  that  in  some  states  the  two-chambered  system 
seems  to  have  proved  a means  of  shifting  responsibility  for  legislation 
or  for  legislative  inaction,  but  that  in  Illinois  each  house  has  had  a defi- 
nite and  positive  influence  in  recent  years,  at  least,  upon  the  form  of 
legislation  finally  enacted. 

In  favor  of  a single-chambered  legislature  it  is  argued  that  such 
a proposal  is  in  effect  not  a radical  one,  and  that  such  a system  has 
been  adopted  in  most  of  the  states  which  go  to  make  up  other  federal 
governments.  In  the  United  States  and  in  the  Australian  Common- 
wealth all  of  the  states  have  two-chambered  legislatures.  In  Argentina 
the  majority  of  the  provinces  (which  correspond  to  our  states)  have 
the  two-chambered  system,  but  the  others  have  single -chambered 
legislative  bodies.  In  Germany  before  the  war,  fifteen  of 
the  twenty-five  states  had  single-chambered  legislatures  and  most  of  the 
individual  states  of  the  Latin-American  federations  have  but 


531 


a single  chamber.  All  the  cantons  of  Switzerland  which  operate 
under  the  representative  system  have  single-chambered  bodies.  In 
the  Dominion  of  Canada,  only  two  of  the  nine  provinces  have  two- 
chambered  legislatures ; and  some  countries  which  have  two-chambered 
legislatures  have  such  a relationship  between  the  powers  of  the  two 
legislative  bodies  that  they  practically  amount  to  a single  chamber. 
Since  the  civil  war  there  has  been  a decided  tendency  in  all  larger 
cities  away  from  the  two-chambered  council,  and  the  single-chambered 
legislative  body  for  cities  has  pretty  distinctly  worked  in  a more 
satisfactory  manner.* 3 

The  two-chambered  legislative  system  is  undoubtedly  more  cum- 
bersome than  the  single-chambered  system  and  makes  it  more  diffi- 
cult to  fix  responsibility,  although,  as  has  already  been  said,  it  fre- 
quently happens  that  the  two  chambers  in  Illinois  do  serve  to  improve 
the  final  result  in  legislation.  When  the  two  chambers  represented  dif- 
ferent interests  in  the  community,  there  was  of  course  a strong  argu- 
ment for  this  type  of  legislative  organization,  and  in  some  states 
today  one  chamber  represents  a rather  distinct  interest  as  against 
the  representation  of  population  in  the  other  chamber.  However,  on 
the  whole  the  distinction  in  the  interests  represented  has  -largely  dis- 
appeared in  this  country.  It  may,  of  course,  be  urged  that  our  cum- 
bersome legislative  system  now  has  too  many  checks,  and  that  re- 
ducing the  legislature  to  one  chamber  would  not  take  ofif  all  checks 
but  would  merely  abolish  one,  and  at  the  same  time  make 
legislation  more  responsible.  The  check  of  the  governor’s 
veto  power  would  still  continue  unless  some  closer  relation- 
ship between  the  governor’s  power  in  legislation  and  that 
of  the  legislative  body  is  worked  out ; and  so,  also,  would 
probably  continue  a series  of  constitutional  checks  upon  legislation, 
enforcible  by  judicial  action.  In  connection  with  the  whole  question 
of  a single-chambered  legislature  with  respect  to  the  state  of  Illinois, 
attention  should  be  called  to  a discussion  later  in  this  pamphlet  upon 
the  problem  of  the  representation  of  Cook  County  and  Chicago  in 
•the  General  Assembly.4 

The  problem  of  the  two-chambered  legislature  has  been  actively 
discussed  in  Great  Britain  and  in  other  countries  having  the  parlia- 
mentary system,  under  which  the  government  is  managed  by  a group 
of  leaders  responsible  to  a popularly  elected  legislative  body,  and  re- 
signing when  they  lose  the  support  of  the  legislative  body.  It  will  be 
seen  that  the  responsibility  of  such  a governing  group  to  two  legis- 
lative bodies,  each  of  which  may  be  controlled  at  a particular  time  by 
different  interests,  would  present  difficulties,  and  the  tendency  in  all 
countries  under  a parliamentary  system  has  been  pretty  distinctly 

~ • 

3 For  a review  of  the  movement  for  single-chambered  legislatures  in  this 
country  and  elsewhere  see  James  D.  Barnett.  The  Bicameral  system  in  State 
Legislation.  American  Political  Science  Review  IX,  449.  (August,  1915). 

4 Upon  the  whole  subject  of  single-chambered  legislatures  and  of  legislative 
organization  see  Temperley,  H.  V..  Senates  and  Upper  Chambers:  and  Marriott, 
Second  Chambers.  See  also  Bulletin  No.  1 of  the  Legislative  Reference  Depart- 
ment of  the  Kansas  State  Library.  Legislative  Systems,  (Topeka.  1914):  Uni- 
versity of  Oklahoma  Bulletin,  new  series.  No.  77.  Bica.meral  Legislatures  (1913); 
Nebraska  Legislative  Reference  Bureau,  Bulletin  No.  3.  Legislative  Procedure  in 
the  Forty-Eight  States  (Lincoln,  1914);  and  Oregon  Publicity  Pamphlet  for  1912. 


532 


toward  making  the  cabinet  as  a governing  group  responsible  to  the 
larger  and  more  popular  of  the  two  legislative  bodies.  This  means 
that  the  other  house  has  little  influence  upon  measures  of  a political 
character. 


Size  of  legislative  bodies.  Under  the  discussion  of  the  his- 
torical development  in  Illinois  attention  has  already  been  called  to  the 
variations  in  the  size  of  the  two  houses  of  the  Illinois  General  Assem- 
bly, and  to  the  policy  adopted  in  this  state  of  limiting  definitely  by  con- 
stitutional provision  the  size  of  the  two  houses.  A table  on  page  534 
sets  out  in  detail  the  membership  of  the  various  state  legislatures  of 
this  country.  Some  states  prescribe  the  maximum  number  of  members 
of  each  house,  leaving  to  the  legislature  the  determination  of  the  exact 
number  within  this  maximum.5  Others  prescribe  the  maximum  and 
minimum  number  of  members  of  each  house,  leaving  to  the  legisla- 
ture the  power  to  fix  the  membership  within  these  limits.6  Louisiana 
fixes  a maximum  number  of  representatives  and  a maximum  and  a 
minimum  number  of  senators. 

In  some  constitutions  a maximum,  or  a maximum  and  minimum, 
number  is  prescribed  for  one  house,  and  a precise  number  is  fixed  for 
the  other.7  Some  states  fix  specifically,  or  by  implication,  the  exact 
number  of  senators  and  representatives  which  shall  compose  the  two 
houses.8  In  a few  states,  the  exact  number  of  members  in  one  house 
is  fixed,  leaving  the  legislature  to  determine  the  number  in  the  other 
house  on  the  basis  of  population,9  while  in  others  the  fixed  number 
may  be  changed  by  legislative  action.10  Minnesota  prescribes  that  the 
number  of  senators  and  representatives  shall  not  exceed  one  for  a cer- 
tain number  of  inhabitants. 

Some  states  prescribe  that  a certain  proportion  shall  exist  be- 
tween the  sizes  of  the  two  houses.11  The  constitutions  of  Colorado 
and  Nevada  provide  that  the  aggregate  of  members  in  both  branches 
of  the  legislature  shall  not  exceed  a specified  number. 

Taking  the  states  as  a whole,  the  -exact  number  of  members  of  the 
two  houses  or  of  one  of  the  two  houses  is  left  to  legislative  determina- 
tion subject  to  constitutional  restrictions.  The  size  of  the  two  houses 
varies  a good  deal  from  one  state  to  another.  The  Illinois  senate  is 
one  of  the  largest,  being  exceeded  only  by  the  state  of  Minnesota 
with  67  members.  The  size  of  the  lower  houses  ranges  from  35  in 
Arizona  and  Delaware  to  404  in  New  Hampshire.  The  membership 
of  the  lower  houses  is  especially  large  in  the  New  England  states  be- 
cause of  the  system  of  town  representation,  although  in  these  states  the 
senate  is  relatively  small. 

5 Alabama,  Florida,  Indiana,  Kansas,  Nebraska,  Oklahoma  and  Oregon. 

0 Mississippi,  North  Dakota,  South  Dakota  and  Virginia. 

7 New  Jersey,  Rhode  Island,  Iowa,  Georgia.  Michigan  and  Maine. 

8 New  York.  California,  Delaware,  Illinois.  Massachusetts,  Kentucky,  New 
Mexico,  North  Carolina.  South  Carolina  and  Vermont. 

9 Maryland.  Texas  and  Missouri. 

10  Arizona.  Montana  and  West  Virginia. 

n Iowa,  Nevada,  Alabama,  Wyoming,  Wisconsin,  Washington,  Utah,  Tennes- 
see and  Idaho. 


A proposed  constitutional  amendment  was  submitted  to  the  peo- 
ple of  Ohio  in  1913  for  a material  reduction  in  the  size  of  both  houses 
of  the  legislature.  The  proposal  was  to  reduce  the  house  of  repre- 
sentatives from  123  members  to  50  members,  and  the  senate  from  33 
members  to  22.  This  proposal,  however,  was  defeated  at  the  polls. 

Under  a constitutional  rule  which  permits  an  increase  in  the 
number  of  members  of  each  house,  such  increase  is  almost  certain  to 
take  place,  and  the  houses  become  too  large  for  anything  like  effective 
legislative  action.  In  all  cases  where  no  limitation  exists,  there  will, 
of  course,  be  political  pressure  by  each  community  to  retain  as  large 
an  actual  representation  as  it  already  has,  leaving  the  readjustment  of 
representation  to  be  accomplished  by  increasing  the  representation  of 
areas  whose  population  has  increased  more  rapidly,  rather  than  by 
readjustment  among  all  of  the  areas. 


Terms  and  sessions  of  legislative  bodies.  Under  the  first  state 
constitutions  in  this  country,  provision  was  made  for  annual  sessions 
of  -legislative  bodies.  The  lower  house  of  the  legislature  had  in  the 
colonial  period  been  the  representative  of  popular  interests  against 
the  crown.  Frequent  and  regular  sessions  of  the  legislature  were 
deemed  essential  in  1776  because  they  had  been  important  issues  in 
the  conflicts  which  had  just  ended,  and  such  issues  naturally  had  an 
influence  upon  the  constitutions  framed  immediately  after  the  declara- 
tion of  independence.  Annual  elections  and  annual  sessions  of  the 
legislative  bodies  were  then  regarded  as  essential  elements  in  a pro- 
gram of  popular  government,  but  distrust  of  legislative  bodies  soon 
developed  and  the  tendency  has  been  pretty  steadily  away  both  from 
annual  sessions  and  from  annual  elections.  The  tendency  has  been 
to  make  the  regular  sessions  of  legislative  bodies  less  frequent,  and 
this  tendency  has,  of  course,  also  involved  a less  frequent  election 
of  members  of  the  two  houses.  A very  pronounced  tendency  has 
also  been  going  on  toward  the  reduction  of  the  length  of  sessions  of 
legislative  bodies.  The  table  given  below  indicates  the  present  sit- 
uation with  respect  to  these  matters  in  the  several  states. 


534 


Membership,  Term  of  Legislature,  Term  of  Governor,  Frequency  of 
Sessions  and  Limit  of  Sessions. 


State. 

Membership  in 

Term  of 
Members 

Term 

of 

Gover- 

nor. 

Sessions 

Held. 

Limit  of 
Session. 

Senate. 

House. 

Senate. 

House. 

Alabama 

35 

106 

4 

4 

4 

Quadrennial.. 

50  days. 

Alaska 

8 

16 

4 

2 

4 

Biennial 

60  days. 

Arizona 

19 

35 

2 

2 

2 

Biennial 

60  days. 

Arkansas 

34 

99 

4 

2 

2 

Biennial .... 

60  days. 

California 

40 

80 

4 

2 

4 

Biennial 

None. 1 

Colorado 

35 

65 

4' 

2 

2 

Biennial 

90  days. 

Connecticut 

35 

258 

2 

2 

2 

Biennial 

5 months. : 

Delaware 

17 

4 

2 

4 

Biennial 

60  days. 

Florida 

32 

73 

4 

2 

4 

Biennial 

60  days. 

Georgia 

44 

189 

2 

2 

2 

Annual 

50  days. 

15 

30 

4 

2 

4 

Biennial . . . 

60  days. 

Idaho 

37 

65 

2 

2 

2 

Biennial 

60  days. 

51 

153 

4 

2 

4 

Biennial 

None. 

50 

100 

4 

2 

4 

Biennia]  .... 

61  days. 

50 

108 

4 

2 

2 

Biennial . . . 

None. 

40 

125 

4 

2 

2 

Biennial 

•50  days. 

Kentucky 

38 

100 

4 

2 

4 

Biennial3 

60  days. 

Louisiana 

41 

118 

4 

4 

4 

Biennial3 

60  days. 

Maine 

31 

151 

2 

2 

2 

Biennial 

None. 

Maryland 

27 

102 

4 

2 

4 

Biennial3 

90  days. 

Massachusetts 

40 

240 

2 

2 

2 

Annual 

None. 

Michigan 

3J 

100 

2 

2 

Biennial 

None. 

Minnesota 

67 

130 

4 

2 

2 

Biennial 

90  days. 

Mississippi 

49 

136 

4 

4 

4 

Biennial3 

None. 

Missouri 

34 

142 

4 

2 

4 

Biennial 

70  days. 

Montana 

41 

95 

4 

2 

4 

Biennial 

60  days. 

Nebraska 

33 

100 

2 

2 

2 

Biennial 

60  days. 

Nevada 

22 

53 

4 

2 

4 

Biennial 

60  days. 

New  Hampshire 

24 

404 

2 

2 

2 

Biennial 

None. 

New  Jersey 

21 

60 

3 

1 

3 

Annual 

None. 

New  Mexico 

24 

49 

4 

2 

2 

Biennial 

60  days. 

New  York 

51 

150 

2 

1 

2 

Annual 

None. 

North  Carolina.  .. 

50 

120 

2 

2 

4 

Biennial 

60  days. 

North  Dakota 

49 

113 

4 

2 

2 

Biennial 

60  days. 

Ohio 

33 

123 

2 

2 

2 

Biennial 

None. 

Oklahoma  . 

44 

111 

4 

2 

4 

Biennial 

60  days. 

Oregon. 

30 

60 

4 

2 

• 4 

Biennial 

40  days. 

Pennsylvania 

50 

207 

4 

2 

4 

Biennial 

None. 

Rhode  Island 

39 

100 

2 

2 

2 

Annual 

60  days. 

South  Carolina 

44 

124 

4 

2 

2 

Annual 

40  days. 

South  Dakota 

45 

104 

2 

2 

2 

Biennial 

60  days. 

Tennessee 

33 

99 

2 

2 

2 

Biennial ...... 

75  days. 

Texas  

31 

142 

4 

2 

2 

Biennial 

60  days. 

Utah  

18 

46 

4 

2 

4 

Biennial 

60  days. 

Vermont 

30 

247 

2 

2 

2 

Biennial3 

None. 

Virginia 

40 

100 

4 

2 

4 

Biennial3 

60  days. 

Washington 

42 

97 

4 

2 

4 

Biennial 

60  days. 

West  Virginia .... 

30 

86 

4 

2 

4 

Biennial 

45  days. 

Wisconsin 

33 

100 

4 

2 

2 

Biennial 

None. 

Wyoming 

27 

57 

4 

2 

4 

Biennial 

40  days. 

1 Split  session— first  part  30  days,  recess  30  days,  second  part  no  limit. 

2 First  Wednesday  after  first  Monday  in  June. 

3 Meets  in  even  years.  All  others  in  odd  years. 

This  table  has  been  revised  from  a similar  table  appearing  in  Bulletin 
No.  9 prepared  for  the  Massachusetts  constitutional  convention  of  1917. 

In  explanation  of  this  table  it  should  be  noted  that  there  are  some 
qualifications  as  to  the  length  o^  sessions.  A number  of  states  do  not 
absolutely  limit  the  sessions  to  the  number  of  days  specified  in  the  table. 
Some  prescribe  that  compensation  shall  cease  after  a certain  number  of 
days  (South  Carolina,  Virginia,  Oregon,  Kansas,  North  Carolina, 
Tennessee,  Idaho,  Rhode  Island,  Delaware,  Arkansas,  Arizona).  Oth- 
ers prescribe  a reduced  compensation  after  a certain  number  of  days 
(Texas,  Missouri,  Oklahoma).  In  West  Virginia  and  Arkansas  the 


535 


length  of  sessions  specified  may  not  be  exceeded  unless  by  a vote  of 
two-thirds  of  the  members  elected  to  each  house,  and  in  Virginia  by 
three-fifths  of  the  members  elected  to  each  house.  Nebraska  curiously 
enough  prescribes  that  the  legislative  session  shall  not  be  less  than  sixty 
days. 

The  tendency  toward  biennial  sessions  of  the  legislatures  has  been 
a steady  one.  Massachusets  in  1918  provided  for  biennial  elections, 
but  continued  the  plan  of  annual  sessions.  Iowa,  in  1904,  adopted 
the  plan  of  biennial  sessions,  and  in  South  Carolina  a constitutional 
amendment  for  biennial  sessions  was  approved  by  the  people  in 
1904,  but  did  not  come  into  effect  because  in  that  state  a constitutional 
amendment  must  be  ratified  by  the  legislature  subsequent  to  its  ap- 
proval by  the  people.  The  only  states  now  having  annual  sessions  of 
their  legislatures  are  Georgia,  Massachusetts,  New  Jersey,  New  York, 
Rhode  Island  and  South  Carolina.  Alabama  has  a quadrennial  session. 
Mississippi  tried  for  some  years  a quadrennial  long -session  with  an 
intermediate  short  session,  but  it  was  usually  necessary  to  extend  the 
length  of  the  short  session,  and  the  state  returned  to  biennial  regular 
sessions. 

With  respect  to  the  limitations  upon  the  length  of  legislative  ses- 
sions, attention  should  be  called  to  the  fact  that  a number  of  states  not 
merely  limit  the  length  of  regular  sessions,  but  also  the  length  of  special 
sessions. 

The  development  from  annual  to  biennial  sessions  of  the  legisla- 
tures cannot  be  said  to  have  increased  materially  the  frequency  of 
special  sessions.  In  Illinois  special  sessions  have  been  frequently  held, 
especially  in  the  period  between  1907  and  1916,  but  special  sessions 
have  not  played  any  large  part  in  Illinois  under  the  plan  of  biennial 
sessions  which  has  existed  since  1818. 

It  will  be  noted  from  the  table  that  in  a majority  of  the  states, 
senators  are  elected  for  four  years  and  representatives  for  two  years, 
and  in  many  of  these  states  one-half  of  the  senate  is  elected  each  two 
years.  However,  Alabama,  Louisiana  and  Mississippi  have  four-year 
terms  for  the  members  of  both  houses,  and  a number  of  states  have  a 
two-year  term  for  members  of  both  houses. 

Some  attention  should  also  be  called  to  the  conditions  under  which 
special  sessions  may  be  assembled  in  the  state  of  Illinois.  The  constitu- 
tion provides  that  the  governor  “may  on  extraordinary  occasions,  con- 
vene the  General  Assembly,  by  proclamation,  stating  therein  the  pur- 
pose for  which  they  are  convened,  and  the  General  Assembly  shall  enter 
upon  no  business  except  that  for  which  they  were  called  together.” 
This  provision  makes  it  necessary  that  the  governor  call  a new  special 
session  if  he  thinks  of  other  things  needing  consideration  after  a special 
session  has  once  assembled.  Such  a difficulty  is  avoided  by  the  con- 
stitutions of  some  other  states. 


Qualifications,  privileges  and  disabilities  of  members  of  the 
General  Assembly.  Little  need  be  said  about  these  matters.  Sec- 


536 


tions  3,  4 and  5 of  Article  IV  of  the  constitution  relating  to  the  qualifi- 
cations and  oath  of  members  of  the  General  Assembly  are  not  dissim- 
ilar from  the  provisions  in  other  state  constitutions.  With  respect  to 
the  disqualifications  because  of  the  holding  of  other  offices,  a change  has 
been  suggested  because  of  the  feeling  that  in  actual  operation  the  exe- 
cutive department  and  the  legislative  bodies  should  be  brought  more 
closely  together. 

Privilege  from  arrest  and  from  being  questioned  with  respect  to 
matters  of  debate  (provided  for  in  Section  14  of  Article  IV)  are  mat- 
ters which  are  ordinarily  covered  by  state  constitutions,  and  which  are 
pretty  clearly  appropriate  with  respect  to  legislative  bodies.  Substan- 
tially the  only  disqualifications  imposed  upon  members  of  the  General 
Assembly  are  those  specified  in  Sections  3,  15  and  25  of  Article  IV  of 
the  constitution.  With  respect  to  Sections  3 and  15  a remark  has  been 
made  above  regarding  the  possibility  of  relaxing  the  limitations  so  as  to 
permit  a closer  co-ordination  between  the  executive  and  the  legislative 
departments.  With  respect  to  interest  in  state  contracts,  dealt  with  by 
Section  25  of  Article  IV,  attention  should  be  called  to  the  fact  that 
there  are  similar  provisions  relating  to  this  matter  in  other  parts  of  the 
constitution,  and  it  would  be  wise  to  bring  all  such  provisions  together 
and  to  make  them  applicable  to  all  governmental  officers. 


Compensation  of  members.  Section  21  of  Article  IV  of  the 
constitution  provides  for  the  pay  of  members,  and  a part  of  this  section 
was  intended  to  meet  definite  abuses  which  existed  before  1870.  For 
this  reason  the  provision  was  placed  in  the  constitution  giving  to  each 
member  the  sum  of  fifty  dollars  “which  shall  be  in  full  for  postage, 
stationery,  newspaper  and  all  other  incidental  expenses  and  perqui- 
sites”. Until  the  decision  in  the  case  of  Fergus  v.  Russel, 12  this  pro- 
vision was  not  observed  with  any  degree  of  strictness.  Since  1915, 
however,  there  has  been  no  use  of  state  funds  to  grant  extra  perqui- 
sites to  members  of  the  General  Assembly.  With  respect  to  the  compen- 
sation of  members,  two  matters  present  themselves.  There  is  some 
argument  in  favor  of  giving  the  speaker  of  the  house  of  representatives 
a greater  compensation  than  that  received  by  other  members  of  the  Gen- 
eral Assembly.  This  argument  has  weight  in  view  of  the  fact  that  a 
speaker  must  normally  devote  a rquch  greater  proportion  of  his  time  to 
legislative  duties  than  do  other  members  of  the  house.  A precedent  for 
such  a practice  exists  in  Chicago,  by  the  plan  under  which  the  chair- 
man of  the  finance  committee  of  the  City  Council  receives  a higher 
salary  than  other  aldermen,  because  of  the  fact  that  his  position  in- 
volves a greater  amount  of  work. 

Another  matter  which  presents  itself  with  respect  to  com- 
pensation is  that  as  to  the  plan  of  permitting  the  payment  of  mile- 
age for  each  week  during  the  legislative  session.  The  practice 
has  developed  in  Illinois,  and  in  practically  all  other  legislative 
bodies  of  the  country,  of  having  a session  for  several  days  during 


12  270  111.  f>26  (1915). 


537 


the  middle  of  the  week,  the  members  returning  to  their  homes 
for  the  week-end.  This  plan  is  recognized  by  legislation  in  Ohio, 
which  prescribes  a fixed  salary  for  each  member  and  then  in  addi- 
tion provides  for  the  payment  of  weekly  mileage.  The  same  plan 
was  also  recognized  by  the  proposed  constitution  which  was  re- 
jected in  New  York  in  1915.  Under  the  Illinois  constitution,  the 
mileage  to  be  paid  to  members  is  definitely  prescribed,  but  the 
amount  of  compensation  is  fixed  by  law,  subject  to  the  condition 
that  “no  change  shall  be  made  in  the  compensation  of  members 
of  the  General  A ssembly  during  the  term  for  which  they  may  have 
been  elected.” 


538 


IV.  CUMULATIVE  VOTING  AND  PROPORTIONAL 
REPRESENTATION. 


• 

Cumulative  voting.  Just  before  1870  the  problem  of  propor- 
tional representation  was  attracting  a good  deal  of  attention  in 
England  and  in  this  country.  The  plan  of  cumulative  voting  pre- 
■ sented  to  and  adopted  by  the  constitutional  convention  of  1869-70 
was  urged  for  two  reasons:  first,  that  the  plan  of  majority  voting 

was  unjust  and  unrepresentative,  and  second,  that  in  the  state  of 
Illinois  representation  was  sectional,  one  large  part  of  the  state 
being  represented  entirely  by  republicans  and  another  large  part 
of  the  state  entirely  by  democrats.;  The  plan  of  cumulative  voting 
was  proposed  to  the  voters  of  the  state  in  1870  as  an  alternative 
for  the  majority  system,  and  was  adopted  by  popular  vote.  It  is 
probable  that  the  most  decisive  argument  for  the  plan  of  cumu- 
lative voting  was  that  regarding  the  sectional  representation  in 
the  Illinois  house  of  representatives  rather  than  the  theoretical 
argument  in  favor  of  a more  equitable  system  of  representation. 
Under  the  provision  for  cumulative 'voting  it  is  provided  that  “in 
all  elections  of  representatives  aforesaid,  each  qualified  voter  may 
cast  as  many  votes  for  one  candidate  as  there  are  representatives 
to  be  elected,  or  may  distribute  the  same,  or  equal  parts  thereof, 
among  the  candidates,  as  he  shall  see  fit ; and  the  candidates  high- 
est in  votes  shall  be  declared  elected. ”j  Under  this  plan  it  is  of 
course  true  that  any  party  having  more  than  one-fourth  of  the 
votes  in  a senatorial  district  may  elect  one  of  the  three  candidates 
to  the  house  of  representatives,  if  all  of  the  votes  of  that  party 
are  concentrated  upon  one  such  candidate.  A party  having  less 
than  three-fourths  of  the  votes  in  a senatorial  district  cannot 
elect  all  three  of  the  representatives  from  the  district  if  any  other 
party  having  at  least  one-fourth  of  the  votes  has  concentrated 
upon  a single  candidate;  and  if  a party  having  a distinct  majoritv, 
but  less  than  three-fourths  of  the  votes  in  a senatorial  district, 
scatters  its  votes  among  three  candidates,  a minority  party  may  be 
able  to  elect  two  candidates  by  a concentration  of  its  votes  upon 
the  two.  The  cumulative  system  therefore  makes  it  necessary 
that  each  party  gauge  its  strength  in  advance  of  the  election,  and 
concentrate  its  votes  in  the  election  upon  the  number  of  candi- 
dates it  thinks  it  possible  to  elect.  A minority  party  able  actuallv 
to  elect  but  one  candidate  may  lose  that  one  if  it  places  two  or 
three  candidates  in  the  field.  The  majoritv  party  able  to  elect 
two  may  lose  one  of  the  two  if  it  places  fib  re  e in  the  field,  and 
there  have  been  some  instances  of  a party  failing  to  obtain  under 


539 


the  cumulative  system  a representation  in  proportion  to  its 
strength,  because  of  its  placing  too  many  candidates  in  the  field. 
On  the  other  hand  a party  may  fail  of  obtaining  representation  of 
its  strength  under  the  cumulative  system  because  of  its  failure  to 
have  as  many  candidates  as  it  could  actually  elect.  That  is,  a 
party  which  has  been  a minority  party  in  a district  may  place 
but  one  candidate  in  the  field  for  representative,  and  may  as  the 
result  of  the  particular  election  become  the  majority  party  with  a 
possibility  of  electing  two  members  of  the  house,  if  it  had  nom- 
inated two  candidates. 

From  what  has  been  said  above  it  will  be  seen  that  the  cumulative 
system  does  not  weaken  party  discipline  as  it  was  supposed  in  1870 
that  it  would  do,  but  that  it  has  had  precisely  the  opposite  effect  of  mak- 
ing party  discipline  necessary  if  each  party  is  to  make  an  effective  use 
of  its  voting  strength. 

Before  the  introduction  of  primary  elections  in  the  state  the  party 
organization  in  each  senatorial  district,  therefore,  of  necessity  deter- 
mined the  number  of  candidates  whom  that  party  should  have  in  the 
election  for  representatives.  After  some  little  difficulty,  the  general  as- 
sembly of  Illinois  was  finally  able  to  enact  a primary  election  law  which 
was  sustained  by  the  Supreme  Court  of  Illinois.  Under  the  primary 
election  law  of  1910  the  determination  as  to  the  number  of  party  can- 
didates in  each  senatorial  district  is  left  to  a party  senatorial  committee, 
and,  in  compliance  with  conditions  laid  down  by  the  Supreme  Court, 
the  primary  election  system  is  also  so  devised  that  in  all  primaries  each 
qualified  primary  elector  may  distribute  his  votes  as  he  sees  fit,  under 
the  cumulative  system,  among  party  candidates  in  the  primary!  The 
primary  law  of  1910  in  conferring  power  upon  the  party  committee  to 
determine  the  number  of  candidates  of  that  party  to  be  voted  upon  in 
the  election  merely  embodies  into  law  the  plan  which  had  previously 
existed,  and  which  practically  must  exist  if  the  cumulative  system  is  to 
have  any  effectiveness. 

If  each  party  were  to  nominate  three  candidates  under  the  cumula- 
tive system,  and  each  party  voter  then  cast  a single  vote  for  each  party 
candidate  so  nominated,  the  cumulative  system  would  break  down  and 
the  result  would  be  the  election  of  all  three  candidates  by  the  party 
having  an  actual  majority  or  plurality  of  votes  in  that  senatorial  dis- 
trict. The.  operation  of  the  cumulative  system,  therefore,  makes  it 
necessary  that  the  party  machinery  determine  in  advance  the  number  of 
candidates  to  be  nominated  and  also  that  the  number  of  such  candidates 
be  limited  by  the  party  organization. 

The  decisions  of  the  Supreme  Court  upon  primary  legislation  in 
this  state  definitely  made  necessary  the  application  of  the  cumulative 
system  to  primary  elections  as  well  as  to  the  regular  election  of  mem- 
bers of  the  General  Assembly.  1 The  chief  arguments  against  making 
the  cumulative  system  applicable  to  party  primaries  were  the  following : 

(1)  It  was  urged  that  primary  election  is  in  no  way,  provided 
for  in  the  constitution,  and  that  provisions  of  the  constitution  regarding 

1 People  v.  Board  of  junction  Commissioners.  221  111.  9 (1906);  Rouse  v. 
Thompson,  228  111.  'n.io\);  People  ex  rel  Phillips  v.  Strassheim,  240  111. 

279  (1909);  People  ex  rel.  ^pWy  v.  Deneen,  247  111.  289  (3  910). 


540 


elections  should  apply  only  to  such  elections  as  are  prescribed  by  the 
constitution  itself.  This  argument  was  rejected  by  the  Supreme  Court 
with  respect  to  primary  elections,  although  substantially  the  same  argu- 
ment has  been  adopted  by  the  Supreme  Court  with  respect  to  woman’s 
suffrage. 

(2)  It  was  urged  that  the  plan  of  cumulative  voting  was  adopted 
by  the  constitution  of  1870  primarily  for  the  purpose  of  obtaining 
representation  of  minority  parties  in  the  two  parts  of  the  state,  so  as  to 
do  away  so  far  as  possible  with  a purely  sectional  representation.  This 
argument  appears  to  be  historically  a sound  one,  and  would  naturally 
lead  to  the  conclusion  that  the  cumulative  system  was  not  directed 
primarily  at  the  results  to  be  obtained  through  party  nominations. 

Cumulative  voting  as  applied  to  primary  elections  has  made  it 
easier  for  candidates  to  present  themselves  for  party  nominations,  but 
has  probably  not  made  it  easier  for  an  independent  candidate  to  obtain 
such  a nomination.  The  party  organization  has  pretty  clearly  not  been 
weakened  by  the  introduction  of  the  cumulative  system  into  the  primary 
elections,  and  to  some  extent  it  may  actually  have  been  strengthened. 

With  respect  to  the  operation  of  the  cumulative  system,  it  may 
perhaps  be  said  that  the  system  has  in  the  main  obtained  a representa- 
tion for  the  two  principal  parties  in  the  state  in  very  close  proportion 
to  the  actual  votes  cast  by  these  parties,  and  also  that  the  system  ob- 
tained for  the  Progressive  party  in  1912  a strength  in  the  house  of 
representatives  proportionate  to  the  vote  cast  by  that  party.  However, 
the  cumulative  system  has  not  obtained  much  of  actual  representation 
for  weak  minority  parties,  or  for  minority  parties  whose  strength  may 
be  relatively  great  but  whose  vote  may  be  scattered  somewhat  evenly 
throughout  all  of  the  senatorial  districts  in  the  state.  The  Progressive 
party  in  1912  cast  a large  vote,  but  its  strength  was  much  greater  in 
some  senatorial  districts  than  in  others.  The  Progressive  party  was, 
therefore,  able  in  1912  to  elect  a number  of  representatives  propor- 
tional to  the  popular  vote  which  is  cast  for  representatives.  In  1914, 
however,  the  actual  vote  cast  for  representatives  by  the  Progressive 
party  was  much  less  than  in  1912,  and  with  this  lesser  vote  the  Pro- 
gressive party  obtained  a strength  in  the  house  of  representatives  dis- 
proportionately low  as  compared  with  the  popular  vote.  To  be  specific, 
the  Progressive  party  cast  for  representatives  in  1912  votes  which 
under  the  cumulative  system  totaled  584,955.  As  a result  of  this  vote 
it  elected  26  members  of  the  house,  and  it  was  entitled  to  this  number. 
In  1914  the  Progressive  party  polled  a vote  of  343,390,  entitling  it  upon 
a proportional  basis  to  18  members  of  the  General  Assembly,  and  ob- 
taining but  two  seats  in  the  house  of  representatives:  The  same  situa- 
tion. has  presented  itself  with  respect  to  other  minority  parties  which 
have  not  obtained  such  a strength  as  to  become  substantially  the  chief 
minority  party  in  particular  districts.  The  cumulative  system  in  its 
operation  has  been  in  no  way  a scheme  of  proportional  representation 
except  as  between  the  two  principal  parties. 

As  has  already  been  suggested,  it  is  essential  that  the  party  organi- 
zation limit  the  number  of  its  candidates,  if^rt&arty  is  not  to  lose  as  a 


result  of  the  operation  of  cumulative  votim 


It  is  pi'C>bably  true  that 

v- 


541 


this  party  control  as  to  the  number  of  candidates  was  actually 
great  before  1910  as  since  enactment  of  the  primary  election  law. 
However,  the  primary  election  law  did  make  the  party  control  of  the 
number  of  candidates  more  definite  and  more  public.  Under  the  pri- 
mary system  it  is  probably  also  true  that  the  party  organization  exer- 
cises equally  as  much  control  over  the  nomination  of  the  candidates 
of  the  particular  party,  although  under  the  primary  system  it  is  easier 
for  any  individual  to  become  a candidate  for  a party  nomination.2 


w. 
he 


The  cumulative  system  almost  necessarily  involves  the  disap- 
pearance of  contests  between  the  parties  in  the  election.  If  each  party 
gauges  its  strength  accurately,  there  will  be  only  as  many  candidates 
of  the  chief  parties  in  the  election  as  there  are  places  to  be  filled.  This 
means  that  ordinarily  the  only  political  contest  is  that  involved  in  ob- 
taining the  nomination,  and  there  has  usually  not  been  active  popular 
participation  in  the  primaries.  At  the  election  the  voter  has  no  choice 
unless  there  is  an  extremely  strong  movement  (outside  of  the  two 
larger  parties),  and  under  the  cumulative  system  two  of  the  three 
candidates  nominated  by  these  parties  are  practically  sure  of  election 
even  though  the  sentiment  against  the  three  may  be  strong,  and  the 
candidate  of  the  minority  party  is  ordinarily  in  a position  where  it 
is  hardly  possible  to  defeat  him.  Under  a cumulative  system  which 
■operates  so  as  to  produce  minority  representation  the  party  organi- 
zations must  control  to  a very  great  extent,  and  the  voter  has  little 
power  of  choice  once  party  nominations  are  made.  This  is  true 
whether  the  nominations  are  by  primary  or  by  convention.  Although 
the  system  has  reduced  sectional  representation  and  brought  about  an 
approximately  proportional  representation  of  the  two  leading  parties, 
it  has  of  necessity  reduced  the  influence  of  the  voter  in  the  election. 

Perhaps  the  main  purpose  in  the  adoption  of  cumulative  voting 
in  1870  was  to  do  away  with  the  distinctly  sectional  representation  in 
the  Illinois  General  Assembly*  and  this  purpose  has  been  accomplished. 
To  some  extent  of  course  a sectionalism  of  representation  would 
again  be  introduced  by  abandoning  the  cumulative  system,  although 
this  is  not  nearly  so  true  as  it  would  have  been  in  1870. 


Majority  elections.  If  cumulative  voting  is  abandoned,  two 
alternatives  present  themselves : either  the  return  to  majority  elec- 
tions for  all  members  of  the  house  of  representatives  as  before  1870, 
or  the  adoption  of  a proportional  system  for  the  election  of  the  house 
of  representatives  and  perhaps  also  for  the  election  of  the  state  senate. 
Under  the  majority  system  of  electing  members  of  the  two  houses  it 
is  oftentimes  true  that  the  party  majorities  in  the  two  houses  repre- 
sent an  actual  minority  of  the  total  vote  cast  for  representatives,  and 
it  is  more  frequently  true  that  the  total  vote  for  representatives  is 

2 For  a full  discussion  of  +he  cumulative  system  and  its  operation  see  Moore, 
B.  F.,  The  History  of  Cumulative  Voting  and  Minority  'Representation  in  Illi- 
nois, 1870-1919,  second  edition.  University  of  Illinois  Studies  in  the  Social 
Sciences. 


542 


huch  less  than  that  for  candidates  for  offices  will'd!  attract  greater 
popular  attention. 

If  the  majority  voting  plan  is  to  be  established  as  before  1870 
the  question  of  apportionment  for  the  house  and  senate  becomes  dis- 
tinctly more  important  than  under  the  present  system  of  cumulative 
voting.  Under  the  present  system  there  is  but  one  series  of  legisla- 
tive districts.  Each  of  these  districts  is  relatively  large,  and  the  plan 
of  electing  three  members  of  the  house  of  representatives  under  the. 
cumulative  system  from  each  such  district  decreases  the  gains  to 
either  party  which  may  be  obtained  by  gerrymandering,  for  either 
one  of  the  principal  parties  knows  that  it  cannot  arrange  districts  in 
such  a manner  as  to  obtain  all  three  representatives.  Comment  has 
been  made  in  a previous  part  of  this  discussion  upon  the  desirability 
of  so  arranging  districts  for  the  election  of  members  of  the  two 
houses  that  there  may  be  a development  of  some  unity  of  feeling  within 
a single  series  of  districts.  It  is  highly  desirable,  if  possible,  to  have 
but  one  series  of  districts  for  the  election  of  members  of  the  two 
houses.  Of  course  it  is  possible  to  have  but  one  series  of  districts 
and  at  the  same  time  to  do  away  with  cumulative  voting.  It  may  be 
possible  to  employ  each  of  the  senatorial  districts  for  the  election  of 
three  members  of  the  house  upon  a purely  majority  plan;  although 
such  a plan,  equally  as  much  as  the  plan  of  splitting  up  the  state  into 
153  house  districts,  will  involve  a greater  possibility  of  employing  ap- 
portionment for  purely  partisan  purposes,  inasmuch  as  the  majority 
party  will  then  elect  all  of  the  three  candidates. 

In  connection  with  the  problem  of  cumulative  voting  some  at- 
tention should  also  be  given  to  the  problem  of  Cook  County  represen- 
tation, especially  with  respect  to  reducing  such  representation.  A full 
discussion  of  this  subject  will  be  found  later  in  this  pamphlet,  but 
attention  should  here  be  called  to  the  fact  that  the  proposition  has 
been  made  for  the  reduction  of  Cook  County  representation  in  one 
house  of  the  General  Assembly,  leaving  representation  in  proportion 
to  its  population  in  the  other  house.  If  this  plan  were  carried  out,  it 
would  be  difficult  to  employ,  at  least  within  Cook  County,  the  same 
districts  for  members  of  the  senate  and  members  of  the  house,  and  any 
plan  of  cumulative  or  proportional  representation  within  Cook  County 
will  also  be  rendered  more  difficult,  although  the  chief  difficulty  will  be 
that  of  setting  up  two  sets  of  districts  for  legislative  purposes.  It 
has  already  been  suggested  that  cumulative  voting  does  not  obtain  what 
is  really  proportional  representation.  In  this  state  cumulative  voting 
has  given  to  the  two  larger  parties  representation  in  the  house  rela- 
tive in  proportion  to  their  strength,  and  representation  proportional 
to  its  strength  was  given  to  the  Progressive  party  in  1912.  However, 
small  parties  have  as  a rule  suffered  from  lack  of  representation  and 
the  cumulative  system  has  been  of  little  or  no  aid  to  them. 


Proportional  representation.  Because  of  this  fact  a more 
proportional  system  of  representation  is  likely  to  be  suggested  for 


54b 


consideration  by  the  constitutional  convention.  -The  ideal  of  propor- 
tional representation  is  that  representation  shall,  as  nearly  as  possible, 
be  in  mathematical  proportion  to  the  votes  cast  by  each  separate  group 
or  party,  whatever  may  be  the  number  of  parties.  If  a district  elects 
only  three  representatives,  this  limitation  of  number  means  that  not 
more  than  three  groups  of  voters  may  be  represented,  and  (under  al- 
most any  system)  that  the  two  stronger  groups  will  elect  the  three.  Pro- 
portional representation  therefore  requires  larger  districts,  each  elect- 
ing a greater  number  of  persons.  Suppose  for  example,  a district  hav- 
ing 70,000  voters  and  electing  seven  members.  A mathematical  dis- 
tribution of  the  seven  members  might  be  as  follows : 


Republicans  30,000  votes  3 members 

Democrats  20,000  votes  2 members 

Progressives  10,000  votes  1 member 

Socialists  10,000  votes  1 member 


Even  with  large  districts  and  with  a scheme  that  will  count  every  vote 
effectively,  exact  mathematical  results  will,  of  course,  not  be  obtained, 
but  the  result  will  be  more  nearly  accurate  than  under  cumulative  vot- 
ing. 

The  several  plans  of  proportional  representation  involve  a good 
deal  of  technicality,  though  the  actual  operation  of  the  several  systems 
is  not  complex.  The  two  plans  most  discussed  are:  (1)  Single  trans- 

ferable vote;  (2)  List  system. 

Under  the  single  transferable  vote  system,  the  voter  votes  for  but 
one  candidate,  no  matter  how  many  candidates  are  to  be  elected,  but  is 
permitted  to  express  also  his  second,  third  and  fourth  choices.  If  the 
candidate  for  whom  he  votes  has  more  than  enough  votes  to  be  elected, 
the  surplus  votes  are  transferred,  in  the  order  of  the  choice  expressed, 
to  some  other  candidate  who  has  not  enough  votes ; and  in  this  manner 
no  person’s  vote  is  lost. 

The  list  system,  long  in  use  in  Belgium,  and  introduced  in  France 
in  1919,'  involves  the  presentation  of  a list  of  candidates  by  each  party, 
the  voter  then  voting  for  the  list  and  also  expressing  his  preference 
among  the  candidates  upon  the  list.  Each  party  obtains  a number  of 
seats  in  proportion  to  the  votes  cast  for  its  list.  The  party  arranges 
the  order  of  names  on  the  list,  and  the  seats  apportioned  to  that  party 
go  to  the  candidates  at  the  head  of  the  list,  unless  the  voters  have  ex- 
pressed a different  preference.  Under  both  the  single  transferable  vote 
system  and  the  list  system,  the  designation  of  candidates  devolves  pri- 
marily upon  the  party  organization,  but  the  party’s  control  is  greater 
under  the  list  system,  because  it  not  only  designates  the  candidates  but 
usually  the  order  in  which  they  shall  be  declared  elected. 

The  proportional  system  has  been  applied  in  a number  of  countries 
throughout  the  world,  and  has  been  most  vigorously  employed  in  those 
countries  where  there  are  not  merely  two  strong  parties,  but  groups  of 
parties  each  relatively  strong.  Where  there  are  a number  of  parties  in 
a given  country  the  scheme  of  proportional  representation  gives  of 
course  more  adequate  representation  to  each  of  these  groups.  In  the 
United  States  (both  in  the  states  and  in  the  federal  system)  the  gov- 


544 


ernment  has  practically  always  been  operated  under  what  may  be 
termed  the  two-party  system.  That  is,  there  have  been  two  great 
parties,  one  of  the  parties  usually  controlling  the  government  and  shar- 
ing some  responsibility  for  the  operaton  of  the  government.  Of  course 
the  system  under  which  a governor  is  elected  for  a four-year  period 
and  members  of  the  house  are  elected  each  two  years  (with  one-half 
of  the  members  of  the  senate  elected  each  two  years)  may  lead  to  a 
condition  under  which  the  governorship  is  controlled  by  one  party  and 
one  or  both  houses  by  the  opposite  party.  Such  a situation  has  also 
presented  itself  quite  frequently  in  connection  with  the  operation  of  the 
national  government,  so  that  under  such  a situation  it  is  impossible  for 
one  party  to  be  completely  responsible  for  the  conduct  of  government, 
because  that  party  is  not  in  control  of  both  the  legislative  and  execu- 
tive organs  of  government.  For  this  reason  it  has  been  suggested  that 
some  scheme  of  parliamentary  government  should  be  adopted  under 
which  the  executive  should  always  be  in  political  harmony  with  the  ma- 
jority in  one  or  both  houses  of  the  legislature.  The  problem  of  parlia- 
mentary government  will  be  discussed  later  in  this  pamphlet,  but  the 
point  here  presenting  itself  is  that  as  to  the  effect  of  cumulative  voting 
or  proportional  representation  upon  the  type  of  government  which  we 
now  have.  A scheme  of  proportional  representation,  and  to  some 
extent  the  scheme  of  cumulative  voting,  may  be  sometimes  operated  to 
give  in  a legislative  body  a majority  to  one  party  or  to  a combination 
of  parties,  other  than  the  party  to  which  the  governor  may  belong.  The 
government  both  in  the  federal  system  in  this  country  and  in  the  states 
operates  best  of  course  when  the  presidency  and  both  houses  of  con- 
gress, or  the  governorship  and  both  houses  of  the  legislature  are  con- 
trolled by  the  same  party.  This  is  true  even  though  it  be  recognized 
that  national  political  issues  play  a relatively  small  share  in  the  actual 
voting  upon  bills  presented  to  state  legislatures.  Under  our  present 
system  of  government  any  system  of  cumulative  voting  or  proportional 
representation  which  operates  to  prevent  political  harmony  between  the 
executive  and  the  legislative  branches  of  government  is  to  that  extent 
disadvantageous,  although  it  can  hardly  be  said  that  the  cumulative 
system  has  operated  to  any  great  extent  in  this  manner  in  Illinois  since 
1870. 


V. 


APPORTIONMENT. 


Under  earlier  systems  of  representation  in  this  country,  the  notion 
was  largely  that  of  representation  of  areas  rather  than  of  population, 
and  to  quite  a large  extent  such  a notion  survives  in  a number  of  the 
states  of  the  country.  In  New  England,  for  example,  under  the  town 
system  the  basis  is  largely  one  of  town  representation,  and  for  this 
reason,  with  the  growth  of  large  communities,  representation  has  be- 
come highly  unequal.  In  some  other  states  there  is  a representation  in 
one  house  on  the  basis  of  territorial  subdivisions.  For  example,  each 
county  in  New  Jersey  is  represented  by  one  senator,  although  two  of 
the  counties  have  grown  to  have  a combined  population  equal  to  two- 
fifths  of  that  of  the  whole  state.  An  inequality  of  representation  neces- 
sarily results  from  the  choosing  of  established  governmental  areas  as  a 
basL  for  representation,  unless  this  plan  be  combined  with  that  of  fre- 
quent reapportionments  and  of  the  grouping  together  of  small  govern- 
mental areas  in  case  any  one  of  them  comes  to  have  a smaller  population 
than  that  determined  upon  as  the  basis  for  representation. 

The  more  common  plan  in  this  country  today,  however,  is  that  of 
providing  for  periodical  reapportionment  basing  such  reap- 
portionments upon  population.  Pennsylvania  in  1776  first  es- 
tablished the  plan  of  reapportionments  at  certain  fixed  in- 
tervals, and  such  a plan  was  adopted  in  Illinois  in  1848. 
The  constitution  of  1870  prescribes  a reapportionment  each  ten 
years  after  the  decennial  census,  and  this  provision  has  been  held 
to  limit  the  General  Assembly  to  a reapportionment  once  in  each 
ten-year  period  following  a federal  census,  although  the  consti- 
tution contains  only  by  implication  a limitation  of  this  character.1 

A large  number  of  the  states  of  this  country  prescribe  appor- 
tionments at  fixed  times  and  also  lay  down  a basis  for  apportion- 
ment which  attempts  to  obtain  a rather  definite  mathematical 
relationship  between  population  and  representation.  Illinois  may 
be  said  to  belong  to  this  group  of  states,  although  the  Illinois  rule 
regarding  apportionment  is  subject  to  one  exception  in  that  “coun- 
ties containing  not  less  than  the  ratio  and  three-fourths  may  be 
divided  into  separate  districts,  and  shall  be  entitled  to  two  sena- 
tors, and  to  one  additional  senator  for  each  number  of  inhabitants 
equal  to  the  ratio  contained  by  such  counties  in  excess  of  twice 
the  number  of  said  ratio.”  Under  this  rule  a county  with  more 
than  two  representatives  is  likely  to  lose  one  senatorial  district 
because  of  the  fact  that  a large  fraction  in  such  a county  cannot 
be  assigned  another  senatorial  district. 


1 People  v.  Hutchinson,  172  111.  486  (1898). 


546 


Reference  has  already  been  made  in  several  places  to  the 
fact  that  Illinois  now  has  but  one  set  of  legislative  districts.  A 
similar  plan  is  employed  in  Minnesota  and  North  Dakota,  but 
without  the  system  of  cumulative  voting. 

There  has  been  a very  definite  tendency  in  this  country  to 
impose  constitutional  limitations  upon  the  methods  of  legislative 
apportionments  in  order  to  prevent  gerrymandering.  Gerry- 
mandering existed  before  the  Massachusetts  apportionment  of 
1812,  although  it  derived  its  name  from  that  apportionment.  Be- 
ginning with  Pennsylvania  in  1790,  constitutional  provisions  came 
to  be  made  requiring  that  legislative  districts  should  be  composed 
of  contiguous  territory  and  containing  other  requirements  of  a 
similar  type.  In  Illinois  a very  definite  rule  is  laid  down  that 
“senatorial  districts  shall  be  formed  of  contiguous  and  compact 
territory,  bounded  by  county  lines,  and  contain  as  nearly  as  prac- 
ticable an  equal  number  of  inhabitants  but  no  district  shall  contain 
less  than  four-fifths  of  the  senatorial  ratio.”  In  some  states  the 
courts  have  been  very  strict  in  construing  constitutional  limita- 
tions of  this  character  and  have  declared  apportionments  invalid 
which  in  the  opinion  of  the  court  did  not  sufficiently  comply  with 
the  constitutional  commands.  In  Illinois,  however,  the  Supreme 
Court  has  been  liberal  and  has  declined  to  inquire  into  apportion- 
ments if  the  constitutional  requirements  have  been  technically 
met.2 

There  is  distinct  advantage  in  the  use  of  permanent  govern- 
mental areas  as  a basis  for  legislative  apportionment,  and  the  Illi- 
nois plan  confines  senatorial  districts  to  county  lines,  unless  a 
particular  county  is  entitled  to  more  than  one  senator  in  which 
case  the  county  is  divided.  In  cases  where  a particular  county  is 
entitled  to  more  than  one  senator  (as  in  the  case  of  Cook  County) 
there  has  ( n the  whole  been  little  effort  to  construct  senatorial 
districts  upon  the  basis  of  existing  local  areas,  within  the  county 
although  ward  lines  within  the  city  of  Chicago  have  been  used  to 
some  extent.  It  is  of  distinct  value  to  build  a representative  sys- 
tem upon  permanent  local  governmental  areas,  although  such  a plan 
would  with  the  growth  of  population  require  the  adjustment  of 
representation  to  such  areas  upon  other  than  a purely  mathematical 
basis.  That  is,  a rule  would  have  to  be  adopted  which  not  merely 
takes  the  mathematical  basis  into  consideration  but  which  also 
considers  the  limits  of  local  territorial  areas. 

In  the  discussion  of  apportionments  in  Illinois,  which  appears 
at  the  beginning  of  this  pamphlet,  attention  is  called  to  the  fact 
that  use  was  made  in  1836  and  in  1841  of  so-called  floating  mem- 
bers. In  1836  the  plan  was  adopted  of  creating  a representative 
district  out  of  two  counties,  such  representative  district  electing 
one  representative  at  one  election  and  two  representatives  at  the 
succeeding  election.  In  1841  an  application  of  the  use  of  floating 
members  was  made  by  providing  that  Schuyler  County  should  elect 

2 For  a valuable  discussion  (now  somewhat  out  of  date)  of  legislative  ap- 
portionment, see  Reinsch,  P.  S.  American  Legislatures  and  Legislative  Methods. 
New  York,  1907. 


547 


une  representative,  Brown  County,  one  representative,  and  the 
two  counties  together,  one  additional  representative.  A plan  for 
floating  representation  was  embodied  in  the  constitution  of 
1870  by  a provision  that  “when  a county  or  district  shall  have  a 
fraction  of  population  above  what  shall  entitle  it  to  one  representa- 
tive, or  more,  according  to  the  provisions  of  the  foregoing  section, 
amounting  to  one-fifth  of  the  ratio,  it  shall  be  entitled  to  one  addi- 
tional representative  in  the  fifth  term  of  each  decennial  period; 
when  such  fraction  is  two-fifths  of  the  ratio,  it  shall  be  entitled  to 
an  additional  representative  in  the  fourth  and  fifth  terms  of  said 
period ; when  the  fraction  is  three-fifths  of  the  ratio,  it  shall  be 
entitled  to  an  additional  representative  in  the  first,  second  and 
third  terms,  respectively ; when  a fraction  is  four-fifths  of  the  ratio, 
it  shall  be  entitled  to  an  additional  representative  in  the  first, 
second,  third  and  fourth  terms,  respectively/’  This  plan  has  never 
come  into  operation  because  by  the  adoption, of  the  cumulative 
voting  plan  in  1870  the  people  limited  apportionment  to  fifty-one 
senatorial  districts. 

In  T870  it  was  urged  that  each  county  should  be  represented 
in  the  house  of  representatives,  but  such  a plan  is  difficult  to  work 
out,  where  there  are  numerous  counties  some  of  which  have  small 
populations.  In  favor  of  making  each  county  a unit  of  representation, 
it  is  urged  that  where  districts  are  composed  of  more  than  one  county, 
a small  county  is  not  apt  to  have  a representative  who  lives 
within  its  borders,  and  political  trading  among  the  counties  is 
likely  to  occur.  From  the  standpoint  of  obtaining  the  popular 
approval  of  a constitution,  the  convention  of  1869-70  acted  wisely 
in  not  making  a legislative  apportionment  for  submission  as  a 
part  of  the  constitution. 


548 


VI.  COOK  COUNTY  REPRESENTATION. 


Constitution  of  1818.  Under  the  first  state  constitution 
senators  and  representatives  were  to  be  apportioned  among  the 
several  counties  or  districts  established  by  law,  according  to  the 
number  of  white  inhabitants.  But  there  was  no  provision  for 
reapportionment  at  definite  intervals.  A minimum  and  maximum 
number  of  representatives  was  named,  until  the  state  had  a popu- 
lation of  100,000 ; and  the  number  of  senators  was  to  be  not  less 
than  a third  nor  more  than  half  the  number  of  representatives. 

Cook  county  (as  part  of  a district  containing  four  other  coun- 
ties) was  first  represented  in  the  eighth  General  Assembly,  elected 
in  1832,  the  district  having  one  senator,  in  a total  of  26 ; but  there 
were  no  Cook  County  members  in  the  house  of  representatives 
until  the  election  of  the  tenth  General  Assembly  in  1836,  which 
had  one  senator  and  three  representatives  from  Cook  County,  in 
a total  of  40  senators  and  91  representatives.  This  representation 
continued  until  the  adoption  of  the  second  state  constitution.  On 
the  basis  of  population  in  1840,  (10,201  in  Cook  County,  and 
476,183  in  the  state),  this  gave  Cook  County  its  full  porportion 
of  members. 


Constitution  of  1848.  The  second  state  constitution  provided 
for  a senate  of  25  and  a house  of  representatives  of  75  members; 
and  authorized  increases  in  the  house  after  the  state  had  a popu- 
lation of  1,000,000.  Senators  and  representatives  were  to  be  ap- 
portioned among  the  counties  or  districts  established  by  law  ac- 
cording to  the  number  of  white  inhabitants,  with  one  senator  to 
each  senatorial  district  and  not  more  than  three  representatives 
to  any  representative  district. 

At  the  election  in  1848,  Cook  County  had  one  senator  and  two 
representatives,  corresponding  approximately  to  the  population  in 
1850  (43,  385  out  of  851,  470).  Under  a re-apportionment  effective 
at  the  election  of  1854,  Cook  County  had  four  representatives,  two 
from  each  of  two  districts.  A new  apportionment,  effective  at  the 
election  of  1862,  gave  Cook  County  two  senators  (from  two  dis- 
tricts), and  seven  representatives  (from  three  districts)  out  of  a 
total  of  eighty-four  members  in  the  house.  This  corresponded  to 
the  population  in  1860 — 144,954  in  Cook  County  and  1,711,951  in 
the  state. 


549 


Constitution  of  1870.  At  the  election  of  1870,  Cook  County 
elected  four  senators  (two  from  each  of  two  districts),  in  a total  of 
fifty,  and  twepty-twt)~ representatives,  in  a house  of  one  hundred 
and  seventy-seven.  The  representatives  were  elected  by  three  dis- 
tricts, ten  from  one  district,  and  six  from  each  of  the  others.  On 
the  basis  of  population  in  1870  (349,966  in  Cook  County  and 

2,539,891  in  the  state),  Cook  County  would  have  had  seven  sena- 
tors and  twenty.-one  representatives. 

With  the 'adoption  of  the  provisions  for  cumulative  voting  and 
minority  representation,  the  state  was  redistricted  into  fifty-one 
senatorial  districts,  each  to  elect  one  senator  and  three  repre- 
sentatives. These  districts  were  now  required  to  be  of  contiguous 
and  compact  territory,  and  to  have  as  nearly  as  practicable  an 
equal  numffeUof  inhabitants.  Under  this  apportionment,  Cook 
County  had  seven  senators  and  twenty-one  representatives,  which 
number  corresponded  to  its  population  in  1870. 

At  the  reapportionment  in  1881,  Cook  County  representation 
was  increased  to  ten  senators  and  thirty  representatives.  In  1894, 
this  was  further  increased  to  fifteen  senators  and  forty-five  repre- 
sentatives. In  1901,  the  latest  apportionment  gave  Cook  County 
nineteen  senators  and  fifty-seven  representatives.  Each  of  these 
apportionments  gave  Cook  County  representation  in  proportion 
to  its  population  at  the  immediately  preceding  census,  as  required 
by  the  constitution. 

With  the  failure  to  redistrict  the  state  after  the  census  of  1910, 
the  representation  of  Cook  County  is  now  less  than  it  would  have 
on  a population  basis.  On  the  basis  of  the  1910  census,  Codk 
County  would  have  twenty-one  senators  and  sixtv-three  repre- 
sentatives; and  it  is  probable  that  the  1920  census  will  show  a 
larger  proportion  of  the  total  population  of  the  state  in  Cook 
County. 


Cook  County  Representation  in  the  General  Assembly. 


Year 

Senate 

House 

of  Rep. 

Population 

Cook  Co. 

Total 

Cook  Co. 

Total 

Cook  Co. 

Total 

State 

Year 

157,445 

1830 

1832 

1 

26 

55 

1836 

1 

40 

3 

91 

10,201 

476,183 

1840 

1848 

1 

25 

2 

75 

43,385 

851,470 

1850 

1854 

1 

25 

4 

75 

144,954 

1,711,951 

1860 

1862 

2 

25 

7 

85 

1870 

4 

50 

22 

177 

349,966 

2,539,891 

1870 

1872 

7 

51 

21 

153 

607,719 

3,077,871 

1880 

1882 

10 

51 

30 

153 

1,191,922 

3,826,351 

1890 

1894 

15 

51 

45 

153 

1,838,735 

4,821,550 

1900 

1902 

. 19 

51 

57 

153 

2,405,233 

5,638,591 

1910 

550 


Proposals  for  limitation.  As  a result  of  the  fixed  number  of 
members  of  the  General  Assembly ,;  the  reapportionments  made  since 
1870  have  necessarily  involved  a reduction  in  the  number  of  members 
in  each  house  from  other  parts  of  the  state,  corresponding  with  the  in- 
crease in  Cook  County  membership.  This  condition  has  probably  added 
to  the  sentiment  outside  of  Cook  County  in  favor  of  limiting  the  repre- 
sentation of  Cook  County ; and  this  sentiment  has  apparently  increased 
as  the  population  of  Cook  County  has  approached  and  tends  to  surpass 
that  of  the  rest  of  the  state.  It  has  been  urged  that  no  single  county 
should  be  allowed  to  elect  a majority  of  the  members  of  the  two  houses 
of  the  General  Assembly. 

Attempts  were  made  to  limit  the  representation  of  Cook  County  in 
connection  with  the  constitutional  amendment  proposed  in  1903  author- 
izing special  legislation  for  Chicago.  The  limitation  proposed  was 
finally  defeated  in  the  house  by  a vote  of  62  to  75,  all  of  the  57  Cook 
County  members  and  18  others  voting  against  it. 

At  the  same  time  the  opposition  to  any  further  increase  in  the 
representation  of  Cook  County  has  probably  been  the  main  factor  in 
the  failure  to  redistrict  the  state  since  1901.  The  result  is  that  not  only 
has  Cook  County  as  a whole  fewer  members  than  it  would  have  in  pro- 
portion to  its  population,  but  also,  that  there  are  now  large  variations  in 
the  relative  population  and  voters  in  different  districts,  Tfoth  within 
Cook  County  and  in  other  parts  of  the  state.  At  the  election  in  Nov- 
ember, 1916,  in  the  17th  district  (in  Cook  County)  only  about  6,000 
electors  voted  for  representatives,  while  in  the  25tb  district  (also  in 
Cook  County)  more  than  50,000  electors  voted.  In  the  51st  district, 
about  18,000  electors  voted,  while  in  the  45th  district  more  than  30,000 
electors  voted. 

At  the  meeting  of  the  Illinois  State  Bar  Association  held  at  Dan- 
ville in  1917,  Col.  Nathan  William  MacChesney  of  Chicago  said  of  the 
proposed  limitation  of  Cook  County  representation : “It  is  entirely  prob- 
able that  in  return  for  Home  Rule  in  Chicago  the  people  down  state  will 
demand  a restriction  upon  the  representation  of  Cook  County.  I be- 
lieve this  is  a fair  demand  and  hope  to  see  under  our  new  constitution 
the  bicameral  system  of  our  legislature  preserved ; with  representation 
in  the  House  upon  a population  basis ; and  with  representation  in  the 
Senate  upon  a geographical  basis,  with  a greatly  reduced  number  of 
senators-/’ 1 


Limitations  on  representation  in  other  states.  The  earliest 

system  of  representation,  that  of  the  English  House  of  Commons,  was 
based  on  the  principle  of  representing  local  communities,  without  ref- 
erence to  population.  Each  shire,  or  county,  and  each  borough  was  en- 
titled to  send  two  members  to  Parliament.  This  remained  the  main 
basis  for  representation  in  Parliament  until  the  Reform  Act  of  1832 ; 
and  it  has  only  been  since  1885  that  population  has  been  considered  an 
important  factor  in  adjusting  representation  in  the  United  Kingdom. 


1 Proceedings  of  the  Illinois  State  Bar  Association,  1917,  p.  306. 


551 


In  the  American  colonial  legislatures,  representation  was  also  at 
first  based  primarily  on  local  districts ; and  only  gradually  has  popula- 
tion come  to  be  accepted  as  the  main  consideration.  The  provisions  of 
the  United  States  constitution  for  the  apportionment  of  members  of 
the  House  of  Representatives  on  the  basis  of  population  readjusted  at 
definite  intervals,  was  the  first  important  application  of  this  principle. 
At  the  same  time,  the  composition  of  the  United  States  Senate  was  and 
still  is  based  on  the  older  principle  of  equal  representation  of  the  states, 
without  respect  to  population. 

Representation  based  largely  on  population  has  come  to  be  gen- 
erally accepted  as  an  underlying  principle  in  the  organization  of  Amer- 
ican state  legislatures.  But  it  is  still  subject  to  many  exceptions  in  a 
large  number  of  states.  On  the  one  hand,  a distinct  preference  is  given 
in  many  states  to  small  local  districts,  such  as  towns  and  counties.  On 
the  other  hand,  in  a number  of  states  there  are  limitations  placed  on 
the  representation  of  large  cities. 

The  most  general  variations  from  the  rule  of  population  are  to  be 
found  in  some  of  the  New  England  states.  Here  representation  in  the 
larger  house  of  the  state  legislature  is  based  in  the  main  on  towns  and 
cities.  In  Connecticut,  Rhode  Island  and  Vermont  each  town  has  at 
least  one  representative;  and  in  New  Hampshire  each  town  with  a 
population  of  600  has  a representative  in  each  legislative  session.  In 
Connecticut  no  town  has  more  than  two  representatives,  and  in  Rhode 
Island,  no  town  or  city  has  more  than  one-fourth  of  the  total  number 
of  members  in  the  larger  house. 

These  provisions  limit  closely  the  representation  of  such  cities  as 
Providence,  R.  I.,  and  New  Haven  and  Hartford,  Connecticut,  which 
are  included  within  the  towns.  The  four  principal  cities  in  Connecticut, 
which  contain  one-third  of  the  population  of  the  state,  have  only  one  in 
thirty-two  of  the  members  of  the  house  of  representatives.  In  Rhode 
Island,  it  was  stated  in  1907  that  a majority  of  the  house  of  representa- 
tives was  elected  by  towns  with  20  per  cent  of  the  population ; and  a 
majority  of  the  senators,  by  little  more  than  8 per  cent  of  the  population 
In  the  case  of  Providence,  there  is  a further  and  stricter  limitation  of 
representation  in  the  state  senate,  as  each  town  or  city  in  Rhode  Island 
has  only  one  senator.  Thus  Providence,  with  half  of  the  population  of 
the  state,  has  only  one-fourth  of  the  members  of  the  house  of  repre- 
sentatives, and  only  1 of  39  senators. 

In  most  of  the  other  states,  the  county  is  taken  as  the  usual  basis 
of  representation.  In  about  one-third  of  the  states,  each  county  is  en- 
titled to  at  least  one  member  in  the  house  of  representatives. 2 

But  none  of  these  states  have  such  great  variations  in  county  pop- 
ulation, or  so  many  counties  with  a small  population  far  below  the 
average,  as  has  Illinois. 

In  Florida  and  Georgia,  no  county  is  allowed  more  than  three 
representatives.  This  limits  the  representation  of  the  counties  con- 
taining the  larger  cities.  Thus  Duval  County,  Florida,  with  a tenth  of 
the  population  of  the  state  in  1910,  has  only  2 out  of  73  members  of  the 

2 Alabama,  Arkansas,  Florida,  Georgia,  Idaho,  Iowa,  Kansas,  Louisiana, 
Mississippi,  Missouri,  New  Jersey,  New  York,  North  Carolina,  Ohio,  Pennsyl- 
vania, South  Carolina,  and  Wyoming. 


552 


house  of  representatives ; and  Fulton  County,  Georgia,  with  7 per  cent 
of  the  total  population,  has  only  3 out  of  184  members  in  the  house.  No 
county  in  Oklahoma  may  have  more  than  7 representatives. 

In  Maryland,  Montana,  New  Jersey  and  South  Carolina,  each 
county  has  only  one  member  of  the  state  senate.  Thus  Hudson  and 
Essex  Counties,  N.  J.  each  with  a fifth  of  the  population  of  the  state 
have  each  but  one  of  21  senators,  as  have  six  other  counties  with  a pop- 
ulation of  over  100,000  each.  These  counties  with  8 members  have 
four-fifths  of  the  total  population ; while  the  other  13  counties  with 
one-fifth  of  the  population  (one  of  which,  Cape  May,  has  only  20,000 
population)  have  13  members  of  the  state  senate. 

.In  Delaware,  Newcastle  County,  with  three-fifths  of  the  total  pop- 
ulation in  1910,  has  only  15  out  of  35  members  of  the  house  of  repre- 
sentatives, and  but  7 out  of  17  members  of  the  senate.  The  city  of 
Wilmington,  in  Newcastle  County,  with  two-fifths  of  the  population  of 
the  state  has  but  5 members  of  the  house  and  2 members  of  the  senate. 

In  Missouri  the  constitution  provides  that  representation  in  the  se- 
nate shall  be  in  proportion  to  population.  In  the  house:  “The  ratio 

of  representation  shall  be  ascertained  at  each  apportioning  session  of 
the  general  assembly,  by  dividing  the  whole  number  of  inhabitants  of 
the  state,  as  ascertained  by  the  last  decennial  census  of  the  United 
States,  by  the  number  two  hundred.  Each  county  having  one  ratio  or 
less,  shall  be  entitled  to  one  representative ; each  county  having  two  and 
a half  times  said  ratio  shall  be  entitled  to  two  representatives ; each 
county  having  four  times  said  ratio  shall  be  entitled  to  three  representa- 
tives ; each  county  having  six  times  said  ratio  shall  be  entitled  to  four 
representatives ; and  so  on  above  that  number,  giving  one  additional 
member  for  every  two  and  a half  additional  ratios.” 

Situations  somewhat  more  analogous  to  those  in  Illinois  are  to  be 
found  in  Baltimore,  Philadelphia  and  New  York  City;  and  constitu- 
tional provisions  with  special  reference  to  the  representation  of  these 
cities  may  be  noted  more  in  detail. 

In  Maryland,  representation  in  the  house  is  based  on  counties,  ac- 
cording to  a schedule  which  approximates  to  population  up  to  a maxi- 
mum of  6 members  for  counties  of  over  55,000  population.  Balti- 
more City  is  divided  into  4 districts  of  equal  population,  each  of  which 
has  6 members,  the  same  as  the  maximum  for  counties.  This  gives 
Baltimore,  with  two-fifths  of  the  population  of  the  state,  a total  repre- 
sentation of  24  out  of  102  members  in  the  house  of  representatives. 
Each  county  in  Maryland  has  one  senator ; and  each  of  the  four  repre- 
sentative districts  in  Baltimore  City  has  one  senator,  giving  Baltimore  4 
of  the  27  members  of  the  state  senate. 

In  Pennsylvania,  representation  in  the  larger  house  is  based  on 
population.  But  in  the  senate,  no  city  or  county  is  entitled  to  separate 
representation  exceeding  one-sixth  of  the  total  number  of  senators. 
This  provision  restricts  the  membership  in  the  senate  of  the  city  and 
county  of  Philadelphia,  which  in  1910  had  about  one-fifth  of  the  total 
population  of  the  state.  It  may  also  before  long  restrict  the  senate 
representation  of  Allegheny  County,  including  the  city  of  Pittsburg, 
which  in  1910  had  one-seventh  of  the  total  population, of  the  state. 


553 


In  New  York  state,  representation  in  the  assembly,  the  larger 
house  of  the  state  legislature,  is  based  on  population,  except  that  each 
county  has  at  least  one  member.  For  the  senate,  provisions  were  adopt- 
ed in  the  constitution  of  1894  which  may  limit  the  representation  of 
New  York  City  to  a slight  extent.  No  county  may  have  more  than 
one-third  of  all  the  senators ; and  no  two  counties  (or  the  territory 
thereof  as  organized  in  1895)  which  are  adjoining  or  are  separated 
only  by  public  waters,  may  have  more  than  one-half  of  all  the  senators. 

The  limitation  of  representation  of  any  one  county  to  one-third  of 
the  senators  does  not  as  yet  operate  to  restrict  the  representation  of  any 
county.  But  it  would  operate  if  all  the  counties  in  New  York  City 
were  combined  into  one ; and  is  thus  an  obstacle  to  the  consolidation  of 
these  counties.  The  limitation  on  the  representation  of  two  adjoining 
counties  limits  the  membership  of  two  of  the  three  counties  of  New 
York,  Bronx3  and  Kings  in  the  senate  to  not  more  than  half  of  the  sen- 
ate. But  as  New  York  City  now  includes  two  other  counties  (Queens 
and  Richmond),  it  is  possible  for  New  York  City  to  elect  more  than 
half  of  the  senators. 

These  provisions  of  the  New  York  constitution  were  retained  in 
the  proposed  constitution  of  1915 ; and  no  steps  were  taken  to  restrict 
further  the  representation  of  New  York  City. 

Equal  representation  of  geographical  districts  with  no  regard  to 
differences  in  population,  as  in  some  of  the  New  England  and  several 
other  states,  is  clearly  out  of  harmony  with  present  day  ideas  of  dem- 
ocracy and  popular  government.  But  there  are  distinct  advantages  in 
basing  representation  on  organized  local  districts  having  a distinct  so- 
cial and  political  life  rather  than  on  artificial  districts  based  solely  on 
population.  The  latter  make  easy  gerrymanders  in  the  interest  of  par- 
ticular parties  or  individuals;  while  rapid  changes  in  population  (es- 
pecially in  large  cities)  soon  cause  wide  departures  from  equality  of 
population,  on  which  such  districts  are  supposed  to  be  based. 

If  any  limitation  on  Cook  County  representation  from  the  popula- 
tion basis  is  considered  advisable,  it  will  presumably  be  based  on  the 
view  that  no  one  county  should  be  able  to  control  the  state  legislature, 
and  there  have  been  occasions,  though  they  are  not  frequent,  where 
members  of  the  general  assembly  from  Cook  County  have  been  aligned 
definitely  against  members  from  other  parts  of  the  state.  At  the  same 
time,  it  may  be  said  that  if  one  county  has  a majority  of  the  population 
of  the  state,  the  remainder  of  the  state  with  a minority  of  the  popu- 
lation should  not  be  given  control  over  the  majority.  It  has  been  sug- 
gested that  these  views  may  be  brought  into  some  degree  of  harmony 
by  basing  representation  in  one  house  of  the  general  assembly  on  pop- 
ulation, and  by  applying  a limitation  to  the  representation  of  Cook 
County  in  the  other  house. 

Reference  has  been  made  to  the  fact  that  Cook  County  representa- 
tation  is  now  the  same  as  in  1901  and  to  the  further  fact  that  a contin- 
ued failure  to  reapportion  will  bring  a progressive  under-representa- 
tion of  Cook  County  upon  the  basis  of  the  present  constitutional  rule. 


3 Bronx  County  was  organized  in  1915  out  of  part  of  New  York  County, 
and  is  therefore  included  under  the  provision  of  the  constitution  of  1894. 


554 


Mere  inaction  by  the  general  assembly  is  therefore  producing  a pro- 
portional under-representation  of  Cook  County. 

It  should  also  be  clearly  borne  in  mind  that  the  problem  of  Cook 
County  representation  is  likely  to  be  considered  in  very  close  relation- 
ship with  that  of  municipal  home  rule  for  Chicago  and  the  other  cities 
of  the  state.  If  Cook  County  and  Chicago  have  a limited  representa- 
tion but  continue  under  the  necessity  of  getting  authority  from  the  gen- 
eral assembly  to  deal  with  local  problems  they  are  helpless,  for  legisla- 
tive inaction  denies  them  the  things  they  need.  If  Chicago  is  governed 
largely  from  Springfield,  reducing  the  representation  of  Chicago  at 
Springfield  is  reducing  the  power  of  the  city  to  govern  itself. 

Attention  should  be  called  again  to  the  fact  that  the  present  consti- 
tutional rule  with  respect  to  representation  in  the  general  assembly  is 
not  precisely  mathematical,  but  penalizes  to  some  exent  a county  hav- 
ing more  than  two  representatives.  Had  an  apportionment  been  made 
in  1910  Cook  County  would,  under  the  existing  constitutional  rule,  have 
obtained  one  senatorial  district  less  than  that  to  which  it  would  have 
been  mathematically  entitled. 

The  problem  of  representation  for  Chicago  and  Cook  county  bears 
a very  direct  relationship  to  the  problems  of  cumulative  voting,  and  of 
a single-chambered  legislature.  If  some  basis  of  representation  is  to 
be  worked  out  by  which  Chicago  and  Cook  County  are  to  have  in  one 
house  a representation  in  proportion  to  their  population  and  in  the 
other  house  a representation  limited  to  less  than  one-half  of  the  whole 
irrespective  of  population,  this  will  create  a distinction  not  now  ex- 
isting between  the  two  houses  and  will  give  a basis  for  a relationship 
between  the  two  somewhat  similar  to  that  between  the  house  of  repre- 
sentatives and  the  senate  of  the  United  States. 

With  respect  to  cumulative  voting,  if  a different  basis  of  repre- 
sentation is  to  be  established  for  Chicago  and  Cook  County,  in  the  two 
houses  of  the  general  assembly,  it  will  be  difficult  to  retain  the  same 
districts  for  the  election  of  members  of  both  houses.  Of  course  it  is 
possible  to  create  a separate  series  of  districts  for  the  election  of  mem- 
bers of  the  house  of  representatives,  continuing  to  elect  three  members 
for  each  such  district  upon  a cumulative  basis,  but  under  such  a plan 
a good  deal  of  the  advantage  of  the  present  system  will  be  lost  because 
of  the  fact  that  it  then  becomes  necessary  to  divide  Cook  County  and 
Chicago  into  two  series  of  somewhat  unrelated  legislative  districts, 
and  perhaps  also  necessary  to  do  the  same  for  the  rest  of  the  state. 

In  connection  with  the  subject  of  Cook  County  representation  in 
the  general  assembly,  attention  should  be  called  to  the  problem  of  ap- 
portionment for  the  election  of  judges  to  the  Supreme  Court.  The 
seventh  Supreme  Court  District  (electing  one  judge)  had  in  1910  a 
population  of  2,618,846,  while  the  total  population  of  the  state  was 
5,638,591. 


555 


VII.  LEGISLATIVE  PROCEDURE. 


A number  of  matters  with  respect  to  legislative  procedure  are 
dealt  with  by  the  constitution  of  Illinois.  The  constitution  pre- 
scribes the  quorum  of  the  two  houses,  requires  that  the  doors  of 
each  house  shall  be  kept  open,  makes  provision  regarding  the  ex- 
pulsion of  members,  and  regarding  the  punishment  of  contempts. 
It  also  contains  provisions  regarding  adjournments  and  a require- 
ment that  a journal  be  kept  and  published.  The  constitution  also 
prescribes  the  enacting  clause,  and  requires  that  on  final  passage 
of  all  bills  “the  vote  shall  be  by  yeas  and  nays  upon  each  bill 
separately  and  shall  be  entered  upon  the  journal,  and  no  bill  shall 
become  a law  without  the  concurrence  of  a majority  of  the  mem- 
bers elected  to  each  house.”  The  provisions  here  referred  to, 
which  are  contained  in  Article  IV,  Sections  9 to  12,  have  made  no 
difficulty. 

Some  comment  should  be  made  regarding  the  journals  of  the 
two  houses.  Constitutional  provisions  in  certain  cases  expressly 
require  that  certain  action  be  taken  and  that  it  be  entered  upon 
the  journals  of  the  two  houses;  and  in  such  cases  the  Supreme 
Court  has  properly  held  that  such  entries  are  necessary  to  the 
validity  of  legislation.  In  other  cases  the  constitution  expressly 
requires  that  certain  action  be  taken  (as  that  bills  and  all  amend- 
ments thereto  shall  be  printed  before  final  passage),  but  does  not 
require  that  the  journals  indicate  that  such  action  was  taken.  The 
court  in  1912  took  the  view  that  the  journals  must  affirmatively 
show  compliance  with  these  latter  requirements  (even  though  the 
constitution  does  not  expressly  require  this),  but  the  court  has 
to  some  extent  modified  this  view,  and  said  that  “where  the  const'' 
tution  does  not  expressly  require  a fact  to  be  recorded  on  the 
journals,  and  it  can  be  inferred  from  a recital  in  the  journals  that 
such  fact  existed  or  such  step  was  taken,  then  the  presumption  will 
be  indulged  that  such  fact  did  exist  or  such  step  was  taken”.1 

More  important  with  respect  to  the  procedure  upon  bills  is 
Article  IV,  Section  13.  This  section  makes  a number  of  specific 
requirements  with  respect  to  the  enactment  of  laws  and  these 
requirements  need  to  be  dealt  with  in  greater  detail. 


Reading  at  large  on  three  different  days.  The  requirement 
that  bills  be  read  at  large  on  three  different  days  in  each  house  is 

1 Neiberger  v.  McCullough,  253  111.  312  (1912).  Dragovich  v.  Iroquois  Iron 
Co..  269  111.  478  (1915). 


55b 


one  which  has  obtained  a place  in  state  constitutions  of  this 
country  largely  as  a result  of  the  copying  of  English  parliamentary 
procedure.  This  requirement  was  first  adopted  to  meet  conditions 
which  have  long  ceased  to  exist.  The  requirement  in  the  main 
was  first  insisted  upon  as  a basis  for  giving  information  to  mem- 
bers of  a legislative  body  upon  a measure  before  they  were  to  vote 
upon  it,  and  reading  was  the  method  employed  at  a period  when 
printing  was  either  non-existent  or -difficult,  and  the  ability  to 
read  was  not  general.  At  the  present  time  every  bill  introduced 
into  either  house  of  the  Illinois  general  assembly  is  at  once  printed 
and  copies  are  placed  upon  the  desks  of  members  on  the  next 
legislative  day.  The  need  for  three  readings  at  large  in  order 
to  inform  members  of  the  contents  of  bills  has  therefore  dis- 
appeared. 

As  a matter  of  fact,  neither  in  the  Illinois  general  assembly 
nor  in  other  legislative  bodies  where  such  a requirement  exists, 
is  it  complied  with.  To  have  the  reading  of  every  bill  in  full  upon 
three  separate  days  in  each  house  of  the  Illinois  general  assembly 
would  occupy  a great  deal  of  time  and  would  serve  no  useful  pur- 
pose, because  no  one  would  listen  to  the  reading.  It  would  be 
much  easier  for  each  member  to  read  the  bill  independently  him- 
self. As  a matter  of  fact,  therefore,  in  Illinois  as  well  as  in  other 
states  the  practice  has  developed  of  entering  upon  the  journal  a 
statement  that  the  bill  has  been  read  at  large  on  three  separate 
days,  when  in  fact  this  has  not  been  done.  In  either  house  of  the 
Illinois  general  assembly,  for  a member  to  insist  that  a bill  be  read 
in  full  is  to  employ  obstructive  tactics  in  connection  with  the  con- 
duct of  legislative  business. 

The  requirement  of  consideration  of  a bill  by  each  house  on 
three  separate  days  is  desirable,  as  a means  of  obtaining  delibera- 
tion and  of  preventing  the  enactment  of  legislation  by  surprise. 
However,  the  useful  purpose  of  this  constitutional  provision  may 
be  accomplished  without  linking  such  purpose  with  a requirement 
which  has  long  proven  useless  and  which  has  probably  been  re- 
tained in  the  constitution  largely  because  it  has  been  possible  to 
disregard  it. 

in  one  state  at  least  the  Supreme  Court  has  taken  the  view 
that  a requirement  of  reading  on  three  different  days  means  that 
the  bill  with  all  of  the  essential  features  finally  placed  in  it  must 
be  read  on  three  separate  days,  so  that  if  a bill  has  inserted  into 
it  by  amendment  important  additions  or  changes,  it  is  necessary 
in  that  state  to  start  the  three  readings  all  over  again.’ 


Printing  of  bills.  The  constitution  requires  that  “the  bill 
and  all  amendments  thereto  shall  be  printed  before  the  vote  is 
taken  on  its  final  passage.”  The  constitution  does  not  expressly 
require  a journal  entry  to  the  effect  that  such  printing  has  taken 

2 State  ex  rel.  Pitts  v.  Nashville  Base  Ball  Club,  127  Tenn.  292.  But  see 
People  v.  La  Salle  Street  Trust  and  Savings  Bank,  279  111.  518  (1915). 


557 


place,  but  the  court  in  the  case  of  Neiberger  v.  McCullough,  (253 
111.  312)  took  the  view  that  compliance  with  this  requirement  must 
affirmatively  appear  upon  the  journals.  This  view  has  been  some- 
what modified.  As  a matter  of  fact,  printing  is  ordinarily  had, 
but  an  effort  is  made  to  see  that  proper  journal  entries  are  made, 
for  an  act  may  otherwise  be  attacked  for  technical  non-compli- 
ance with  the  requirement  if  there  is  no  such  entry  even  where 
there  was  printing,  whereas  the  act  cannot  be  so  attacked  if  the 
journal  entries  are  proper  even  though  the  requirement  itself  may 
have  been  disregarded. 


Subject  matter  and  title.  The  constitution  provides  that  no 
act  hereafter  passed  shall  embrace  more  than  one  subject  and 
that  shall  be  expressed  in  the  title.  This  constitutional  provision 
has  been  construed  liberally.  The  court  has  always  taken  the 
view  which  permits  related  subject  matters  to  be  brought  together 
under  a proper  title,  and  the  rule  as  laid  down  by  the  court  with 
respect  to  titles  is  not  difficult  to  observe.  Perhaps,  however, 
attention  should  be  called  to  the  fact  that  occasionally  the  Su- 
preme Court  has  been  somewhat  technical  in  these  matters,3  al- 
though a technical  view  has  not  been  generally  taken  and  the  rules 
laid  down  are  desirable  in  connection  with  the  enactment  of  laws. 


Amendment  by  reference.  The  constitution  provides  that  “no 
law  shall  be  revived  or  amended  by  reference  to  its  title  only,  but 
the  law  revived,  or  the  section  amended,  shall  be  inserted  at  length 
in  the  new  act.”  This  provision  was  introduced  into  the  consti- 
tution of  Illinois  for  the  purpose  of  preventing  the  amendment  of 
previous  laws  by  reference,  in  such  a manner  that  by  reading  the 
later  act  it  was  impossible  to  tell  what  was  sought  to  be  accom- 
plished thereby.  For  example,  before  1870  acts  were  passed  in 
substantially  the  following  form  “Be  it  enacted,  etc.,  that  Sec- 
tion 1 of  an  Act  entitled,  etc.,  is  amended  by  inserting  the  words 
‘county’  before  the  word  ‘State.’  ” In  the  case  of  such  a bill,  or 
of  the  act  if  it  were  passed,  it  was  impossible  to  know  what  was 
being  accomplished,  and  legislation  of  this  type  was  often  passed 
through  the  two  houses  of  the  general  assembly  without  a know- 
ledge of  what  was  being  done.  Such  an  amendatory  act  was  of 
course  unintelligible  unless  compared  with  the  section  amended. 
The  purpose  of  the  constitutional  provision  was  to  require  amend- 
ing acts  to  set  forth  at  length  the  section  or  sections  amended. 

From  1870  to  1900  the  court  applied  the  constitutional  rules 
so  laid  down  to  acts  which  were  expressly  amendatory  in  form. 
Beginning  with  the  case  of  People  v.  Knopf4  the  court  laid  down 

3 Milne  v.  People.  224  111.  125  (1906). 

4 People  ex  rel.  Stuckart  v.  Knopf.  183  111.  410  (1900). 


558 


the  rule  that  if  an  act  independent  in  form  amends  or  adds  new 
provisions  to  the  existing  law,  then  such  act  is  amendatory  of 
previous  legislation,  and  the  provisions  of  the  law  so  amended 
must  be  set  forth  in  the  new  act.  That  is,  before  1900  the  Supreme 
Court  took  the  view  that  the  constitutional  provision  regarding 
amendment  by  reference  laid  down  a definite  rule  as  to  an  act 
which  expressly  amended  an  earlier  act.  Since  1900  the  court  has 
taken  the  view  that  a new  act  entirely  independent  in  form  may  be 
held  unconstitutional  if  in  the  view  of  the  court  the  new  act  so 
alters  previous  legislation  that  the  two  acts  must  be  read  together 
in  order  to  find  the  law  upon  the  subject.  Theoretically,  the  later 
rule  is  a desirable  one  in  that  it  seems  to  require  a close  coordina- 
tion of  new  legislation  with  old  legislation.  Actually,  however, 
the  new  principle  as  laid  down  by  the  court  merely  results  in 
leaving  to  the  discretion  of  the  court  in  each  case  the  determina- 
tion as  to  whether  an  act  is  sufficiently  independent  to  be  upheld  as 
an  independent  act,  and  the  court,  in  passing  upon  this  question  with 
respect  to  a large  number  of  acts  independent  in  form  since  1900,  has 
not  laid  down  any  definite  rule  as  to  when  an  act  will  be  held  not 
amendatory  of  previous  legislation  and  when  it  will  be  so  held.  With 
the  large  mass  of  statutes  in  force  at  any  given  time,  it  is  possible  to 
hold  that  practically  any  new  piece  of  legislation  is  amendatory  of 
earlier  legislation,  and  with  no  definite  principles  laid  down  for  the 
guidance  of  the  general  assembly  in  its  determination  as  to 
what  acts  shall  be  independent  in  form  and  what  acts 
shall  be  amendatory  in  form,  the  present  rule  practically  sets  up 
a guessing  contest  between  the  general  assembly  and  the  Supreme 
Court,  in  which  the  Supreme  Court  has  the  last  guess.  This  situ- 
ation has  been  an  inevitable  one,  after  the  step  was  once  taken  of 
applying  the  constitutional  rule  to  statutes  independent  in  form, 
and  the  only  way  out  of  the  present  situation  is  probably  to  change 
the  constitution  so  as  to  limit  the  provision  to  what  appears  to 
have  been  its  original  intent  and  to  the  interpretation  given  it  by 
the  Supreme  Court  before  1900.  The  clause  as  now  interpreted 
occasions  difficulties  which  greatly  outweigh  its  advantages.  For 
a further  discussion  of  this  subject  see  a chapter  in  the  pamphlet 
entitled  “Constitutional  Conventions  in  Illinois,”  and  the  note  to 
this  clause  in  the  Annotated  Constitution. 


Time  when  laws  take  effect.  One  of  the  important  problems 
to  come  before  the  constitutional  convention  is  that  as  to  the  time  when 
laws  shall  become  effective.  The  constitution  now  provides  that  “no 
act  of  the  general  assembly  shall  take  effect  until  the  first  day  of  July 
next  after  its  passage,  unless,  in  case  of  emergency  (which  emergency 
shall  be  expressed  in  the  preamble  or  body  of  the  act),  the  general  as- 
sembly shall,  by  a vote  of  two-thirds  of  all  the  members  elected  to  each 
house,  otherwise  direct”.  This  provision  was  placed  in  the  constitu- 
tion upon  the  assumption  that  the  general  assembly  would  ordinarily 


559 


continue  in  session  for  only  about  three  months,  and  that  an  interval 
of  substantially  three  months  would  elapse  after  the  adjournment  of 
the  general  assembly  before  the  laws  come  into  effect.5 

For  a number  of  years  it  has  been  customary  for  the  regular  ses- 
sion of  the  general  assembly  to  sit  until  close  to  the  first  day  of  July. 
The  ordinary  practice  is  for  the  general  assembly  to  take  a recess  at 
least  ten  days  before  the  first  of  July  so  as  to  permit  the  governor  to 
act  upon  bills,  then  returning  to  hear  the  governor’s  veto  messages. 
With  substantially  all  legislation  passed  at  the  end  of  the  session,  the 
bulk  of  legislation  therefore  comes  into  effect  almost  immediately  after 
it  is  enacted.  In  view  of  the  large  mass  of  legislation  passed  at  the 
end  of  the  session  it  is  impossible  to  issue  promptly  the  official  text  of 
the  laws,  and  a period  of  from  two  to  three  months  always  elapses  be- 
tween the  time  when  laws  come  into  operation  and  the  time  when  the 
full  official  text  of  such  laws  is  available  to  the  public  generally. 

To  some  extent  the  Secretary  of  State  meets  this  situation  by  the 
immediate  issue  in  pamphlet  form  of  some  of  the  more  important  laws, 
and  an  effort  to  give  public  information  at  least  as  to  what  laws  have 
been  enacted  is  made  by  the  Legislative  Reference  Bureau  through  the 
publication  immediately  upon  the  adjournment  of  the  general  assembly 
of  a digest  of  laws  enacted.  However,  the  present  situation  is  a thor- 
oughly unsatisfactory  one,  and  in  order  to  meet  it  some  constitutional 
provision  is  necessary. 

It  will  probably  be  suggested  that  a plan  be  adopted  under  which 
all  laws  shall  come  into  effect  within  a certain  period  (say  sixty  or 
ninety  days)  after  the  adjournment  of  the  general  assembly.  If  the 
present  legislative  practices  continue,  such  a provision  would  be  satis- 
factory from  the  standpoint  of  general  legislation,  although  there  is 
value  in  having  a definite  date  for  this  purpose  which  does  not  shift 
each  two  years.  However,  appropriations  for  the  conduct  of  the  state 
government  present  a different  problem.  If  all  laws  were  made  to 
come  into  effect  within  a certain  period  after  adjournment,  the  appro- 
priation period  would  be  a variable  one  each  two  years,  and  such  an 
arrangement  would  be  highly  undesirable  from  the  standpoint  of  an 
appropriation  policy.  In  any  plan,  therefore,  as  to  the  time  when  laws 
are  to  come  into  effect,  the  problems  of  appropriation  may  have  to  re- 
ceive separate  consideration. 

The  present  constitutional  provision  presents  several  difficulties 
in  addition  to  the  one  bringing  laws  into  effect  when  their  texts  can- 
not be  known  generally  for  a period  of  some  three  months.  One  of  the 
difficulties  presents  itself  with  respect  to  special  sessions.  The  consti- 
tution says  that  laws  shall  not  take  effect  until  the  first  day  of  July 
next  after  their  passage,  unless  an  emergency  is  declared  and  the  vote 
of  two-thirds  of  all  the  members  elected  to  each  house  is  obtained. 
In  a special  session  called  to  meet  a particular  emergency,  it  may 
be  that  legislation  is  immediately  necessary,  and  that  a distinct  majority 
will  enact  the  legislation,  but  that  a two-thirds  vote  to  declare  it  in 
effect  before  the  first  day  of  the  succeeding  July  will  be  impossible. 
Such  a situation  would  be  met  by  a constitutional  provision  bringing 


5 Debates  and  Proceedings,  Constitutional  Convention,  1870,  page  540. 


560 


laws  into  effect  within  a certain  specified  number  of  days  after  the  ad- 
journment of  the  session. 

Another  difficulty  presented  by  the  present  situation  is  that  as  to 
the  status  of  laws  passed  at  the  end  of  a regular  legislative  session, 
and  either  expressly  approved  by  the  governor  or  filed  by  him  without 
objections  after  June  30.  A situation  of  this  character  was  presented 
to  the  Attorney  General,  and  his  opinion  upon  the  matter  will  be  found 
in  the  Attorney  General’s  Report  for  1917-18,  page  573.  The  governor 
has  ten  days  within  which  to  act  upon  bills,  and  the  ten  days  may  often 
carry  the  consideration  of  bills  beyond  the  first  of  July.  If  a bill 
should  be  approved  on  or  after  the  first  of  July  or  if  it  should  be  filed 
with  the  Secretary  of  State  after  that  date  without  objections,  the 
question  presents  itself  as  to  whether  the  bill  must  not  wait  until  the 
first  day  of  the  succeeding  July  before  coming  into  operation.  The 
Attorney  General  has  ruled  that  a bill  passed  by  the  two  houses  before 
July  1 but  filed  by  the  governor  with  the  Secretary  of  State  without 
objections  after  July  1,  becomes  effective  upon  the  date  upon  which 
the  Secretary  of  State  makes  his  certificate  of  such  filing.  Under  the 
ruling  of  the  Attorney  General,  such  an  act  was  held  to  become  ef- 
fective on  July  8,  1915,  although  as  he  suggests,  this  question  will  be  a 
debatable  one  until  it  is  finally  decided  by  the  Supreme  Court. 


Practical  operation  of  Illinois  legislative  system.  The  pro- 
cedure of  legislative  bodies  is  complex,  and  is  largely  based  upon  rules 
which  have  grown  up  through  a number  of  centuries  and  which  in  the 
main  are  not  and  should  not  be  embodied  in  constitutional  provisions. 
Some  of  the  matters  bearing  upon  conduct  of  business  in  the  two 
houses  of  the  Illinois  General  Assembly  should  be  commented  upon  in 
their  bearing  upon  the  operation  of  legislative  institutions  in  Illinois. 
No  effort  will  be  made  here  to  deal  with  the  problems  of  legislative  pro- 
cedure in  detail,  but  comment  will  be  made  upon  some  of  the  matters 
which  have  a more  important  bearing  upon  the  subject. 


Duplicate  introduction  of  bills  into  the  two  houses.  The  prac- 
tice has  become  almost  the  usual  one  in  Illinois  to  have  an  identical  bill 
introduced  in  the  two  houses  at  substantially  the  same  time.  It  is  sup- 
posed that  some  advantage  results  from  having  the  same  measure 
started  upon  its  career  in  the  two  houses  at  the  same  time,  and  occa- 
sionally if  a measure  is  popular,  it  will  be  passed  by  each  of  the  two 
houses  at  substantially  the  same  time.  However,  if  a bill  is  introduced 
as,  let  us  say,  house  bill  No.  8 in  the  house,  and  senate  bill  No.  85  in 
the  senate,  it  is,  in  fact,  a separate  and  distinct  measure  in  each  house.  If 
house  bill  No.  8 passes  the  house,  and  senate  bill  No.  85  passes  the 
senate,  the  same  subject  matter  has  been  acted  upon  by  each  house,  but 
the  same  bill  has  not  been  acted  upon  by  the  two  houses.  What  is  done 
in  such  a case  is  that  one  of  the  bills,  let  us  say  the  senate  bill,  will  be 


561 


merely  ignored  and  the  house  bill  that  has  passed  the  house  will  then 
have  to  go  through  all  the  stages  of  senate  passage  just  as  if  the  senate 
had  never  done  anything  whatever  with  respect  to  the  same  measure. 
In  this  case,  therefore,  no  time  is  saved  and  nothing  is  gained.  This 
is  the  more  common  experience  with  respect  to  introducing  the  same 
measure  in  each  of  the  two  houses. 

Some  advantage,  however,  is  thought  to  be  gained  by  duplicate  in- 
troductions in  three  respects : 

(1)  It  is  thought  that  a bill  so  introduced  has  an  advantage 
through  the  fact  that  if  there  is  an  unfavorable  committee  in  one  house 
there  may  be  a favorable  committee  in  the  other  house,  so  that  if  the 
bill  is  not  advanced  in  one  house,  it  may  be  advanced  and  passed  in  the 
other  house.  Having  passed  one  house,  there  will  be  a better  chance  of 
passing  in  the  other  house.  The  number  of  cases  to  which  this  notion 
applies  is  limited. 

(2)  Occasionally  a bill  fails  because  it  is  defective.  So,  a bill 
may  have  passed  the  senate  and  house  and  have  been  vetoed  because  de- 
fective. If  the  same  measure  had  been  introduced  in  the  house  and 
has  reached  second  reading  there,  the  measure  in  the  house  might  then 
be  taken  up,  amended  and  pushed  through  house  and  senate  stages 
much  more  promptly  than  if  no  measure  were  already  available  in  the 
house  for  such  action.  Under  these  conditions,  two  days  might  be 
saved  in  the  passage  of  a bill  through  the  two  houses.  This  situation 
is  one  which  infrequently  presents  itself,  and  the  advantage  here  sug- 
gested is  one  which  would  occur  only  in  the  last  days  of  a legislative 
session. 

(3)  It  is  oftentimes  true  that  there  is  some  advantage  in  having 
the  members  of  each  house  develop  a familiarity  with  a measure  early 
in  the  legislative  session,  and  something  is  often  gained  by  having  an 
important  measure  introduced  into  both  houses  so  that  it  may  be  easier 
for  the  members  of  each  house  to  become  familiar  with  its  terms. 
However,  if  a measure  introduced  in  one  house  is  really  important, 
members  of  the  other  house  are  very  apt  to  acquire  some  familiarity 
with  it,  without  the  necessity  of  duplicate  introduction. 

Over  against  the  possible  advantages  of  duplicate  introductions 
in  the  two  houses  should  be  set  the  very  great  disadvantage  of  encum- 
bering the  calendars  of  each  house.  In  the  Fiftieth  General  Assembly 
(1917)  1,041  bills  were  introduced  into  the  house  and  612  into  the 
senate.  Of  these  230  identical  bills  were  introduced  in  each  of  the  two 
houses.  That  is,  if  each  of  these  bills  had  been  introduced  in  the  house 
alone  the  number  of  senate  bills  would  have  been  382.  Substantially  no 
advantage  was  gained  from  this  duplication  but  there  was  a great  ex- 
pense, due  to  increased  cost  of  printing,  and  in  each  house  there  was  ex- 
treme difficulty  due  to  cumbering  the  calendars  with  duplicate  measures 
and  duplicate  committee  considerations.  To  some  extent  there  was 
difficulty  due  to  the  fact  that  substantially  identical  measures  went  to 
the  governor  upon  the  same  subject,  the  two  houses  passing  through  all 
their  stages  two  measures  to  accomplish  the  same  purpose.  For  ex- 
ample, in  1917  house  bill  No.  290  and  senate  bill  No.  286,  dealing  with 


562 


the  same  subject  went  to  the  governor;  house  bill  No.  223  and  senate 
bill  No.  523,  both  dealing  with  the  same  subject,  went  to  the  governor. 


Committees.  In  the  house  of  representatives  a substantial  re- 
form in  committee  organization  was  accomplished  in  1915  by  changes 
in  the  rules.  This  reform  related  to  three  things:  (1)  the  number  of 
committee  was  substantially  reduced,  (2)  the  size  of  committees  was 
to  some  extent  reduced,  and  (3)  as  a result  of  reduction  in  the  number 
and  size  of  committees,  the  number  of  committee  memberships  of  each 
member  was  reduced.  The  house  committee  organization  is,  therefore, 
substantially  satisfactory  at  the  present  time,  although  some  of  the 
committees  are  still  much  too  large  for  effective  work,  and  members  of 
the  house  find  it  impossible  to  act  effectively  upon  all  the  committees  to 
which  they  are  assigned.  In  the  Fiftieth  and  Fifty-first  General  As- 
semblies (1917,  1919)  each  member  was  upon  an  average  of  four  com- 
mittees, and  a large  number  were  upon  five  committees.  There  is  a dis- 
tinct advantage  in  having  a large  appropriations  committee,  because  that 
committee  should,  so  far  as  possible,  represent  more  or  less  the  views 
of  the  house  at  large;  but  there  is  less  justification  for  large  commit- 
tees for  other  matters,  and  the  larger  the  committee  the  more  difficult 
it  is  to  get  a quorum  for  meetings,  and  to  get  effective  work. 

In  the  senate,  little  has  been  done  with  respect  to  the  reorgani- 
zation of  committees  and  of  committee  work.  Although  the  senate  is 
only  one-third  as  large  as  the  house,  there  are  more  committees  in  the 
senate  than  in  the  house.  There  were  thirty-three  standing  commit- 
tees in  the  senate  in  the  Fiftieth  General  Assembly,  and  thirty-eight 
standing  committees  in  the  Fifty-first  General  Assembly.  Upon  one  of 
these  committees,  that  of  appropriations,  there  were  43  of  the  51  mem- 
bers in  1917  and  the  same  number  in  1919 ; and  although  there  is  some 
reason  for  a large  appropriations  committee,  it  hardly  seems  necessary 
that  that  committee  should  have  upon  it  substantially  the  whole  mem- 
bership of  the  senate.  But  the  appropriations  committee  is  not  the 
only  large  committee  in  the  senate.  Upon  the  committee  dealing  with 
consolidation  of  state  agencies  in  1917,  there  were  thirty-three  mem- 
bers. Upon  the  committee  on  agriculture  and  the  committee  on  canals 
and  waterways,  and  the  committee  on  education  in  1919  there  were 
thirty-one  members  each.  Upon  the  committee  on  industrial  affairs 
in  1919  there  were  thirty-two  members ; upon  the  committee  on  public 
utilities  there  were  thirty-four  members,  and  upon  the  committee  on 
roads,  highways  and  bridges  there  were  thirty-six  members.  In  1917 
each  senator  had  committee  memberships  averaging  substantially 
eleven,  and  a number  of  these  committees  were  of  course  important 
ones  which  were  holding  frequent  sessions.  In  1919  the  size  of  com- 
mittees was  even  greater  than  in  1917.  Seven  members  of  the  senate 
of  the  Fifty-first  General  Assembly  were  each  upon  twenty  or  more 
committees,  and  one  member  was  upon  twenty-eight  committees.  A 
number  of  committees  must  necessarily  hold  sessions  at  the  same  time. 


563 


and  to  obtain  a quorum  in  any  of  the  large  committees  is  therefore  dif- 
ficult if  not  actually  impossible.  No  member  of  the  senate  is  able  to 
divide  himself  among  eleven  committees  at  the  same  time,  and  the  lead- 
ing members  of  the  senate  are  not  able  to  divide  themselves  among 
twenty  committees.  Although  all  of  these  committees  would  not  be 
sitting  at  the  same  time,  the  difficulty  is  not  very  much  lessened  by  the 
fact  that  the  individual  member  is  supposed  to  be  in  four  or  five  com- 
mittee meetings  at  the  same  time.  In  the  senate,  committees  have  al- 
most necessarily  ceased  to  be  small  bodies  for  the  purpose  of  prepar- 
ing business  to  be  considered  by  a larger  body. 

There  would  be  a distinct  advantage  if  it  were  possible  to  have  a 
uniform  organization  of  the  committees  of  the  two  houses,  and  there 
is  some  value  in  having  joint  committees  such  as  are  employed  in  New 
England.  However,  a close  co-operation  between  committees  of  the 
house  and  senate  is  now  difficult  because  the  committees  of  the  two 
houses  are  not  uniformly  organized. 

The  difficulty  of  having  committees  acting  jointly  is  increased  be- 
cause of  the  fact  that  references  of  bills  to  committees  are  oftentimes 
not  based  upon  the  actual  scope  of  a particular  committee’s  activities. 
For  example,  in  the  Fiftieth  General  Assembly,  a large  number  of  bills 
in  both  the  house  and  senate  were  referred  to  the  judiciary  commit- 
tee, which  might  perhaps  properly  have  been  referred  to  another  com- 
mittee. The  judiciary  committees  of  the  two  houses  are  usually  con- 
stituted very  carefully  and  a measure  which  might  properly  go  to  an- 
other committee  is  often  referred  to  the  judiciary  committee  because  the 
judiciary  committee  is  regarded  as  one  which  will  give  more  careful  and 
more  effective  attention  to  the  matter.  This  is  a situation  which  will  al- 
ways continue.  Matters  are  oftentimes  referred  to  the  appropriations 
committee  in  the  first  instance,  or  measures  are  sometimes  reported 
out  of  the  appropriations  committee  which  might  more  properly  be 
handled  by  other  committees.  Here  again  much  of  this  sort  of  thing 
will  be  due  to  the  fact  that  particular  committees  are  more  carefully 
constituted  than  are  other  committees  of  each  of  the  two  houses.  How- 
ever, if  each  house  could  have  a committee  organization  uniform  with 
that  of  the  other  house,  a greater  degree  of  co-operation  between  the 
two  houses  could  be  obtained  and  it  would  be  possible  to  some  extent 
to  make  use  of  joint  hearings  and  of  joint  sub-committees.  If  there 
were  some  joint  action  of  committees  or  some  possibility  of  a joint 
committee  calendar,  it  would  be  easier  to  deal  with  the  difficulties  of 
duplicate  bills. 

If  committees  are  to  be  reconstituted,  something  may  also  be  said 
in  favor  of  co-ordinating  committee  organizations  of  the  two  houses 
with  the  executive  organization  of  the  state  government.  With  the  con- 
solidation of  administrative  activities  of  the  state  government,  commit- 
tees will  naturally  expect,  upon  administrative  measures,  to  consult 
with  the  departments  having  these  particular  matters  in  charge  and,  so 
far  as  these  matters  are  concerned,  there  would  be  an  advantage  in 
having  a committee  organization  planned  to  fit  in  with  the  state  admin- 
istrative organization. 


564 


Distribution  of  committee  work.  Perhaps  the  most  serious 
difficulty  with  respect  to  committee  organization  is  that  the  great  body 
of  committee  work  is  done  by  a relatively  small  number  of  committees. 
In  the  Fiftieth  General  Assembly  (1917)  the  number  of  bills  intro- 
duced in  the  house  was  1,041 ; of  these  183  went  to  the  committee  on 
appropriations,  and  277  to  the  committee  on  judiciary,  making  460  out 
of  1,041.  Other  committees  which  had  a large  amount  of  business  in 
the  house  were  the  committee  on  education  with  63  bills,  the  committee 
on  elections  with  47  bills,  the  committee  on  municipalities  with  89  bills, 
and  the  committee  on  insurance  with  44  bills. 

The  statements  just  made  relate  to  the  distribution  of  senate 
bills  to  senate  committees  and  of  house  bills  to  house  committees. 
However,  the  same  situation  presented  itself  with  respect  to  the 
distribution  among  senate  committees  of  house  bills  that  passed 
the  house,  and  to  the  distribution  among  house  committees  of 
senate  bills  that  passed  the  senate.  For  example,  of  the  239  senate 
bills  which  went  to  the  house  in  1917,  34  went  to  the  committee 
on  appropriations  and  55  to  the  committee  .on  judiciary.  Of  the 
324  house  bills  that  went  to  the  senate,  77  went  to  the  committee 
on  appropriations,  and  97  to  the  committee  on  judiciary. 

Without  a better  committee  organization  and  a more  even 
division  of  business  among  the  several  committees,  the  situation 
is  likely  to  continue  of  having  certain  committees  overworked 
during  all  the  time  of  a legislative  session  and  others  with  little 
or  nothing  to  do.  This  situation  will  continue  to  some  extent  no 
matter  what  committee  organization  there  may  be,  because  some 
committees  will  be  more  carefully  constituted  and  will  be  more  effi- 
cient than  others  and  to  these  committees  will  naturally  go  the 
more  important  matters,  whether  such  matters  belong  specifically 
within  the  scope  of  such  committees  or  not.  However,  much  may 
be  accomplished  by  a more  effective  committee  organization. 


Committee  proceedings.  Difficulty  has  presented  itself  in  this 
state  through  the  irregularity  of  times  for  committee  meetings  and 
through  uncertainty  as  to  committee  hearings.  So  long  as  senate 
committees  are  as  numerous  as  they  have  been  in  the  past,  it  is 
impossible  to  arrange  well  in  advance  a planned  schedule  of  com- 
mittee meetings  and  committee  hearings,  for  it  is  substantially 
impossible  to  have  a number  of  committees  meeting  at  the  same 
time.  To  a less  extent  the  same  statement  is  true  of  the  house. 
If,  however,  some  reorganization  of  committees  were  effected,  it 
should  be  possible  to  plan  formal  times  for  committee  meetings, 
so  that  members  might  know  well  in  advance  what  committee 
plans  thev  should  make  and  so  also  that  those  desiring  to  appear 
at  committee  hearings  should  have  sufficient  notice  of  such  hear- 
ings. 

One  difficulty  which  presents  itself  in  the  two  houses  results 
from  failure  of  committees  to  make  prompt  reports  of  matters  re- 


565 


ferred  to  them.  Under  the  house  rules,  the  house  is  able  to  con- 
trol a bill  and  to  force  committee  reports,  but  the  somewhat  cum- 
bersome machinery  of  forcing  committee  reports  or  of  forcing  a 
bill  from  a committee’s  hands  to  the  floor  of  the  house  is  not  likely 
to  be  much  used.  For  the  protection  of  committees  themselves 
and  in  order  to  avoid  the  reporting  of  bills  in  large  number  near 
the  end  of  the  session,  there  should  be  some  rule  requiring  prompt 
report  upon  referred  bills.  Such  a rule,  however,  could  hardly  be 
made  applicable  to  the  appropriations  committees  of  the  house 
and  senate,  because  appropriation  matters  cannot  be  dealt  with 
in  the  form  in  which  appropriation  bills  are  introduced  by  the  mem- 
bers of  the  two  houses.  , 

In  the  house  and  senate  of  the  Fiftieth  General  Assembly 
(1917)  a large  number  of  bills  were  tabled  at  the  end  of  the  ses- 
sion, because  they  had  not  been  reported  out  of  committee  at  all 
or  because  they  had  been  reported  so  late  that  any  further  action 
upon  them  was  out  of  the  question.  In  many  cases,  bills  remained 
in  committee  at  the  request  of  the  introducer  of  the  bill,  because 
the  introducer  preferred  that  the  bill  remain  in  committee  rather 
than  be  reported  unfavorably.  However,  it  is  distinctly  preferable 
to  have  each  bill  acted  upon  by  committee  so  that  it  may  be  tabled 
in  the  house  or  senate  upon  the  basis  of  committee  report  or  so 
that  the  introducer  may  obtain  if  possible  a non-concurrence  in 
the  committee  report. 

Perhaps  the  most  important  thing  to  be  considered  is  that  of 
the  desirability  of  having  bills  reported  out  of  committees  promptly 
so  that  they  may  be  before  the  house  in  which  they  have  been 
introduced,  in  order  that  action  upon  bills  may  be  taken  day  by 
day  during  the  earlier  stages  of  the  session,  avoiding  as  far  as 
possible  the  congestion  of  business  which  always  takes  place 
during  the  last  few  days  of  the  session.  If  committees  reported 
bills  promptly,  it  is  probable  that  the  greater  number  of  bills  so 
reported  would  be  reported  unfavorably,  and  tabled  by  the  house 
or  senate.  In  this  way  the  bills  which  are  not  to  be  passed  could 
be  disposed  of  promptly,  and  the  calendar  cleared  of  much  matter 
which  is  not  to  receive  consideration.  This  would  be  a much  more 
satisfactory  and  a simpler  way  of  disposing  of  a large  mass  of 
relatively  unimportant  or  undesirable  bills,  rather  than  the  present 
plan  of  leaving  such  bills  in  committee  to  be  tabled  at  the  end  of 
the  session. 


Careful  examination  of  each  bill  before  final  passage.  There 
is  no  machinery  now  existing  in  either  house  of  the  General 
Assembly  nor  in  the  two  combined  for  the  careful  scrutiny  of  each 
bill  before  final  passage  to  see  what  defects  there  may  be  in  it, 
and  how  it  fits  in  with  existing  legislation.  Such  a scrutiny  is 
accomplished  in  Massachusetts  by  a committee  on  bills  in  the  third 
reading  and  the  Massachusetts  house  rule  provides  that  “the  com- 


566 


mittee  on  bills  in  the  third  reading  shall  examine  and  correct  the 
bills  which  are  referred  to  it  for  the  purpose  of  avoiding  repetition 
and  unconstitutional  provisions,  insuring  accuracy  in  the  text  and 
references,  and  consistency  with  the  language  of  existing  statutes; 
provided,  that  any  change  in  the  sense  or  legal  effect,  or  any 
material  change  in  construction,  shall  be  reported  to  the  house  as 
an  amendment.”  This  committee  has  a trained  secretary  and 
seeks  to  do  what  is  here  suggested  as  desirable.  With  respect  to 
the  problem  here  under  consideration,  an  organization  such  as  that 
here  commented  upon  could  accomplish  a good  deal  not  only  in 
improving  the  final  form  of  bills  but  also  in  preventing  duplica- 
tion in  the  enactment  of  measures,  and  in  co-ordinating  all  of  the 
legislative  work  of  a session.  Bills  before  they  come  to  final 
passage  in  either  house  quite  frequently  have  amendments  adopted 
to  them  which  to  some  extent  change  the  scope  or  character  of 

the  bills,  and  oftentimes  such  bills  are  passed  and  sent  to  the  gov- 

ernor without  any  effort  to  co-ordinate  the  amendments  with  the 
somewhat  different  plan  of  the  original  bill.  A problem  which 
presents  itself  also  in  this  connection  is  that  of  co-ordinating  amend- 
atory bills.  It  often  happens,  under  the  constitutional  rule  in  this 
state  with  respect  to  amendments,  that  several  bills  are  introduced, 
each  seeking  to  amend  the  same  section  of  a prior  statute.  To 

pass  several  bills,  each  amending  the  same  section  of  a statute, 

would  be  futile,  because  the  bill  last  passed  would  control,  and 
none  of  the  amendments  to  the  section  would  be  of  any  effect  un- 
less included  in  that  bill.  No  machinery  now  exists  for  the  pur- 
pose of  co-ordinating  all  amendments  to  the  same  action  of  a 
previous  act. 


End  of  the  session  rush.  In  every  session  of  the  Illinois  Gen- 
eral Assembly  the  bulk  of  the  legislative  work  is  done  during  the 
last  few  weeks,  so  far  as  the  passage  of  legislation  is  concerned. 
The  regular  session  of  the  Fiftieth  General  Assembly  began  Jan- 
uary 3,  and  no  action  upon  bills  was  taken  after  June  16,  1917. 
The  number  of  actions  on  bills  by  the  two  houses  from  January  3 
to  June  4 was  very  little  greater  than  the  number  of  such  actions 
taken  by  the  two  houses  from  June  4 to  June  16,  and  in  the  enact- 
ment of  legislation  the  amount  of  business  from  June  4 to  June  16 
was  much  greater  than  that  previous  to  June  4.  Of  271  house 
bills  passed  in  the  senate  in  the  Fiftieth  General  Assembly  (1917), 
183  were  passed  in  the  senate  on  and  after  June  4;  of  137  senate 
bills  passed  in  the  house  in  1917,  103  were  passed  by  the  house 
on  and  after  June  4.  Of  the  239  senate  bills  passed  by  the  senate, 
45  were  passed  on  and  after  June  4,  and  of  the  324  house  bills 
passed  in  the  house  130  were  passed  on  and  after  June  4.  The  bulk 
of  the  legislation  passed  bv  both  houses  was  enacted  on  and  after 
June  4 in  1917.  In  the  Fifty-first  General  Assembly  (1919),  of 
the  242  senate  bills  passed  in  the  house  179  were  passed  on  and 


567 


after  June  4 ; of  the  228  house  bills  passed  in  the  senate,  194  were 
passed  on  and  after  June  4;  of  the  261  house  bills  passed  in  the 
house  in  1919,  92  were  passed  on  and  after  June  4,  and  of  the  320 
senate  bills  passed  in  the  senate  in  1919,  136  were  passed  on  and 
after  June  4.  In  comparing  the  figures  for  the  sessions  of  1917  and 
1919,  it  should  be  borne  in  mind  that  the  two  houses  took  their 
final  recess  in  1917  on  June  16,  and  in  1919  on  June  20,  so  that 
there  were  four  more  legislative  days  after  June  4 in  1919  than  in 
1917. 

The  last  two  weeks  of  a legislative  session  are  converted  into 
a succession  of  roll  calls  and  the  enactment  of  bills  is  a very  rapid 
performance,  in  which  undue  haste  is  essential  if  the  measures 
are  to  get  through  before  adjournment.  In  Illinois  there  has  not 
been  in  recent  years  the  abuse  of  a so-called  short  roll  call,  in  which 
bills  are  passed  upon  a roll  call  which  consists  of  calling  the  first 
and  last  names  upon  the  list  of  members,  but  bills  passed  as  they 
are  in  the  last  few  days  of  the  session  in  Illinois  cannot  receive 
adequate  attention. 

The  notion  has  developed  among  a great  many  members  that 
it  is  easier  to  get  a bill  through  in  this  rush, at  the  end  of  the  ses- 
sion than  earlier,  and  for  this  reason  many  bills  are  definitely  held 
up  until  near  the  end.  Substantially  the  only  effect  of  this  rush 
is  that  measures  receive  insufficient  attention  and  that  many  meri- 
torius  measures  are  defeated  simply  because  of  the  lack  of  time  for 
the  presentation  of  their  merits. 

Moreover,  measures  enacted  at  the  end  of  the  session  come  to 
the  governor  in  great  numbers  for  action  within  ten  days  which 
he  has  for  approval  or  veto,  and  executive  action  must  therefore 
necessarily  be  much  less  careful  than  if  the  measures  came  to  the 
governor  in  smaller  numbers  at  regular  intervals  during  the  ses- 
sion. Although  the  present  rules  of  the  two  houses  have  gradually 
developed,  it  would  almost  seem  that  they  have  been  planned  for 
the  purpose  of  producing  a great  rush  of  business  at  the  end  of 
the  session.  Rules  of  the  two  houses  which  now  contribute  to 
this  situation  are  the  following: 

(a)  A committee  may  hold  a bill  without  report  as  long  as  it  sees 
fit  and  may  report  it  toward  the  end  of  the  session. 

(b)  After  the  committee  has  reported  the  bill  (even  if  the  com- 
mittee reports  promptly),  the  member  introducing  or  in  charge  of  it 
in  either  house  may  not  urge  it  to  second  reading  or  to  a third  reading 
and  vote,  either  because  of  lack  of  interest,  or  because  of  a fear  of  the 
result. 

It  is  true  that  the  daily  calendars  indicate  an  order  of  bills,  but 
the  order  in  which  bills  actually  come  up  is  different,  and  depends  to 
a large  extent  upon  unanimous  consent.  Of  the  147  house  bills  on  the 
house  calendar  for  June  5,  1917,  for  second  reading,  the  first  twenty- 
two  were  not  taken  up  at  all.  None  of  the  remaining  bills  on  the  house 
calendar  for  that  day  were  called  up  in  the  order  in  which  they  ap- 
peared on  the  calendar.  In  the  senate  on  June  5,  1917,  the  bills  were 
called  up  more  in  the  order  in  which  they  appeared  on  the  senate  calen- 


568 


dar.  Both  in  the  house  and  in  the  senate,  the  rules  do  not  force  a con- 
sideration or  disposal  of  bills  by  committees,  or  by  the  two  houses,  in 
the  order  in  which  they  are  presented,  and  the  degree  of  promptness 
with  which  a bill  is  urged  for  consideration  depends  to  a very  great 
extent  upon  the  individual  member  who  presented  the  bill  or  who  is  in 
charge  of  it.  That  is,  upon  this  important  matter,  the  order  of  business 
in  the  two  houses  is  dependent  not  upon  the  calendar  or  upon  the  order 
in  which  business  is  presented,  but  is  primarily  dependent  upon  the 
will  of  the  individual  members  with  respect  to  when  their  matters  shall 
receive  consideration.  The  individual  member  is  in  command  of  the 
order  in  which  steps  shall  be  taken  upon  his  bill. 

A very  large  number  of  the  bills  in  each  house  should  properly  be 
reported  unfavorably  by  committees.  If  they  were  unfavorably  re- 
ported and  were  so  reported  promptly,  in  only  a few  cases  would  such 
bills  ever  receive  further  consideration.  Such  a reporting  would  to 
a very  great  extent  clear  the  records  of  the  committees  and  of  the 
house,  and  concentrate  attention  upon  the  more  important  measures 
which  are  likely  to  receive  a real  consideration.  Upon  all  measures 
that  receive  favorable  committee  action,  or  that  are  likely  to  receive 
such  action,  there  should  be  an  opportunity  for  deliberation  in  the 
houses  themselves ; and  this  deliberation  cannot  take  place  unless  there 
is  a fairly  prompt  committee  report,  followed  by  a fairly  prompt  con- 
sideration in  the  house  itself  after  the  committee  report  has  been  made. 
The  individual  member  who  has  introduced  a measure  should  not  be 
permitted,  either  because  of  fear  or  indifference,  to  keep  that  measure 
pending  indefinitely  upon  the  calendar  so  as  to  cumber  the  calendar 
and  force  over-hasty  consideration  of  measures  at  the  end  of  the 
session. 

The  necessarily  lesser  consideration  of  each  bill  by  the  house  and 
senate  in  the  rush  at  the  end  of  the  session  and  the  difficulties  pre- 
sented to  the  governor  in  his  passing  upon  bills  have  been  suggested 
above.  The  difficulties  with  respect  to  enrolling  and  engrossing  are  also 
materially  increased  in  the  end  of  the  session  rush. 

There  is  no  rush  at  the  end  of  the  session  in  the  Massachusetts 
general  court,  although  in  Massachusetts  the  number  of  bills  intro- 
duced and  passed  at  each  session  is  larger  than  that  in  Illinois.  The 
Massachusetts  rules  are  devised  largely  for  the  purpose  of  obtaining 
a prompt  consideration  of  legislative  measures.  Substantially  all 
measures  are  introduced  early  in  the  session.  Legislative  rules  require 
committees  to  report  before  the  second  Wednesday  in  March  on  all 
matters  that  have  been  referred  to  them  before  that  date.  This  time 
may  be  extended  for  one  month  but  when  the  date  for  report  has  ex- 
pired, all  measures  still  in  the  hands  of  any  committee  must  be  re- 
ported within  three  days.  This  rule  does  not  apply  to  appropriation 
bills.  After  report  and  second  reading,  bills  in  Massachusetts  go  to 
the  committee  on  third  reading  of  bills  and  if  not  reported  promptly 
from  this  committee  a report  may  be  forced.  This  committee  ordi- 
narily reports  within  two  or  three  days  and  if  it  desires  to  hold  a bill 
longer  it  reports  this  fact.  When  reported  upon  by  the  committee  on 
third  reading  of  bills,  the  bill  is  then  voted  upon  in  the  house  in  which 


569 


it  is  presented.  Through  the  rules  and  practice  in  the  consideration  of 
bills  by  the  Massachusetts  general  court,  each  step  upon  a bill  is  sub- 
stantially forced  after  the  previous  step  has  been  taken.  In  Illinois 
there  are  no  rules  forcing  prompt  action  in  the  taking  of  the  various 
steps  involved  in  the  consideration  of  bills,  and  for  this  reason  most 
bills  remain  until  the  end  of  the  session  for  consideration. 


Rules  of  procedure  in  constitutions.  This  discussion  of  the 
procedure  in  the  two  houses  has  been  placed  here  for  the  purpose  of 
indicating  more  clearly  certain  of  the  important  legislative  problems 
in  this  state.  The  most  important  single  problem  is  of  course  that 
with  respect  to  the  rush  of  business  at  the  end  of  the  session.  It  is  not, 
however,  desirable  that  rules  of  legislative  procedure  should  be  placed 
in  the  constitution.  Some  states  have  details  as  to  legislative  procedure 
in  their  constitutions.  And  these  details  have  either  worked  badly  or 
means  have  been  found  for  disregarding  them.  The  constitution  of 
1870  contains  a number  of  rules  and  certain  of  these  rules  now  make 
difficulty,  although  the  present  constitution  does  not  regulate  matters 
of  legislative  procedure  in  detail.  Constitutional  provisions  regarding 
such  matters  as  titles  and  printing  of  bills  are  intended  primarily  to 
prevent  the  enactment  of  legislation  without  proper  notice  to  the  mem- 
bers of  the  two  houses.  It  has  for  this  reason  been  suggested  that 
the  constitution  provide  a date  after  which  the  constitutionality  of  laws 
should  not  be  open  to  attack  upon  these  grounds.  Such  a view  finds 
some  support  in  decisions  by  the  Supreme  Court.6 

The  subject  of  appropriation  methods  has  not  been  treated  here, 
but  will  be  found  fully  discussed  in  Bulletin  No.  4,  dealing  with  state 
and  local  finance.  One  constitutional  limitation  upon  legislative 
action  is  that  with  respect  to  the  separation  of  appropriations  for  offi- 
cers from  other  legislation.  In  Bulletin  No.  4,  attention  has  been  es- 
pecially directed  to  this  constitutional  provision.  It  is  desirable  that 
matters  of  general  legislation  should  not  be  united  with  matters  of 
appropriation,  but  there  is  little  value  in  such  a constitutional  provision 
as  that  of  Illinois  which  separates  the  appropriation  for  officers  from 
appropriations  for  other  purposes  but  does  not  necessarily  separate 
appropriations  from  other  types  of  legislation. 


6 Richter  v.  Burdock.  257  111.  410  (1913).  See  also  Greenberg  v.  City  of 
Chicago,  256  111  213  (1912). 


570 


VIII.  RELATIONS  OF  THE  LEGISLATIVE  DEPART- 
MENT TO  OTHER  PARTS  OF  THE  GOVERNMENTAL 
ORGANIZATION. 


Special  sessions  of  the  General  Assembly.  The  constitution 

provides  in  Article  V,  section  8,  that  “the  Governor  may  on  extra- 
ordinary occasions  convene  the  General  Assembly  by  proclamation 
stating  therein  the  purpose  for  which  they  are  convened,  and  the 
General  Assembly  shall  enter  upon  no  business  except  that  for  which 
they  were  called  together.”  Under  this  constitutional  provision,  if 
the  governor  convenes  a special  session  of  the  General  Assembly, 
and  other  matters  arise  after  his  proclamation  for  this  purpose,  the 
only  method  of  obtaining  consideration  of  such  other  matters  is  by 
convening  another  special  session.  Of  course,  it  is  possible  to  issue 
a proclamation  convening  another  special  session,  even  though  the 
General  Assembly  is  already  in  special  session,  but  this  is  a cumber- 
some means  of  accomplishing  the  desired  purpose.  A much  better 
plan  is  to  provide  that  the  governor  may  convene  a special  session, 
indicating  in  his  proclamation  the  matters  to  which  the  special  ses- 
sion is  to  be  limited,  but  with  authority  to  specify  at  a later  time 
further  matters  that  may  be  considered  in  such  session. 

In  case  of  disagreement  between  the  two  houses  with  respect  to 
the  time  of  adjournment,  the  governor  may  on  such  disagreement  being 
certified  to  him  by  the  house  first  moving  the  adjournment  “adjourn 
the  General  Assembly  to  such  time  as  he  thinks  proper,  not  beyond  the 
first  day  of  the  next  regular  session.”  This  power  in  the  governor  to 
adjourn  the  two  houses  is  one  which  will,  of  course,  be  used  infre- 
quently,1 and  it  has  not  been  employed  since  the  adoption  of  the  con- 
stitution of  1870. 


Veto  power.  Under  the  first  state  constitutions  in  this  country 
little  or  no  power  over  legislation  was  vested  in  the  governor.  The 
distrust  of  the  legislature  which  developed  rather  promptly  after  the 
framing  of  the  first  state  constitutions  led,  however,  to  the  conferring 
of  a veto  power  upon  the  governor,  and  there  has  been  a definite  tend- 
ency toward  an  increase  of  this  power.  Under  the  constitution  of  1818, 
a veto  power  was  vested  in  a Council  of  Revision  composed  of  the 
governor  and  the  judges  of  the  State  Supreme  Court,  but  their  power 
was  subject  to  be  overcome  by  a majority  of  the  members  elected  to  each 
of  the  two  houses.  The  Council  of  Revision  disappeared  in  184-8,  and  a 

1 For  Governor  Yates’  use  of  this  authority  in  1863.  see  the  case  of  People 
v.  Hatch,  33  111.  9 (1863). 


571 


veto  power  was  vested  in  the  governor  acting  alone,  but  the  governor’s 
veto  in  this  constitution  could  also  be  overcome  by  a mere  majority 
vote  of  the  members  elected  to  each  of  the  two  houses.  By  the  consti- 
tution of  1870  the  governor’s  veto  power  was  made  more  effective  by 
the  provision  that  it  could  be  overcome  only  by  a vote  of  two-thirds  of 
all  the  members  elected  to  each  of  the  two  houses.  The  governor’s 
authority  was  still  further  extended  in  1884  by  the  adoption  of  a con- 
stitutional amendment  conferring  upon  him  thej)ower  to  veto  items  of 
appropriation  bills. 

The  veto  power  in  this  state  has  been  effectively  exercised,  and  a 
full  discussion  of  the  cases  in  which  it  has  been  employed  will  be  found 
in  a study  by  N.  H.  Debel  on  The  Veto  Power  of  the  Governor  of 
Illinois.  2 

In  the  development  of  the  governor’s  veto  power,  Illinois  parallels 
the  development  in  substantially  all  of  the  other  states  of  the  country. 
Ohio  in  1903  and  Rhode  Island  in  1909  first  vested  a veto  power  in 
the  governors  of  those  states,  leaving  North  Carolina  as  the  only  state 
which  now  does  not  grant  such  a power  to  its  chief  executive.  The  de- 
velopment of  the  governor’s  veto  power  over  items  of  appropriation  has 
been  a rapid  one  in  this  country.  Since  1900  the  states  of  Virginia, 
Ohio,  Oklahoma,  Michigan,  Kansas,  Arizona,  New  Mexico,  Oregon 
and  Massachusetts  have  vested  such  an  authority  in  their  governors, 
and  such  power  now  exists  in  three- fourths  of  the  states. 

There  has  been  a tendency  in  some  states  to  extend  still  further  the 
governor’s  veto  power.  The  Washington  constitution  of  1889  and  the 
South  Carolina  constitution  of  1895  confer  upon  the  governor  the 
power  to  veto  any  section  or  sections  of  a bill  presented  to  him.  Ohio 
in  1903  conferred  a similar  power  upon  its  governor  to  veto  sections 
in  bills  other  than  appropriation  bills,  but  this  authority  was  withdrawn 
in  Ohio  by  constitutional  amendment  in  1912. 

The  Alabama  constitution  of  1901  permits  the  governor  to  propose 
an  amendment  to  remedy  any  feature  of  a bill  which  he  does  not  ap- 
prove, and  if  his  proposed  amendment  is  not  adopted  by  the  two  houses, 
the  bill,  in  order  to  become  a law,  must  be  passed  over  the  executive 
veto.  The  Virginia  constitution  of  1902  also  gives  the  governor  power 
to  recommend  the  amendment  of  a bill  if  he  approves  its  general  pur- 
pose but  disapproves  any  part  thereof,  and  in  this  state  the  bill,  if 
amended  by  the  two  houses  or  if  they  fail  to  amend  it  in  accordance 
with  the  governor’s  recommendation,  is  again  returned  to  the  governor 
for  his  approval  or  disapproval. 

A Massachusetts  constitutional  amendment  adopted  in  1918  pro- 
vides that : “The  Governor  within  five  days  after  any  bill  or  resolve 

shall  have  been  laid  before  him,  shall  have  the  right  to  return  it  to  the 
branch  of  the  general  court  in  which  it  originated  with  the  recomenda- 
tion  that  any  amendment  or  amendments  specified  by  him  be  made 
therein.  Such  bill  or  resolve  shall  thereupon  be  before  the  general 
court  and  subject  to  amendment  and  reenactment.  If  such  bill  or  re- 
solve is  re-enacted  in  any  form  it  shall  again  be  laid  before  the  Governor 

2 University  of  Illinois  Studies  in  the  Social  Sciences,  Vol.  6,  Nos.  1 and  2 
(1917). 


572 


for  his  action,  but  he  shall  have  no  right  to  return  the  same  a second 
time  with  a recommendation  to  amend.”  A somewhat  similar  provision 
is  made  by  an  Act  of  1905  with  respect  to  the  power  of  the  mayor  of 
the  City  of  Chicago. 3 Under  this  law,  the  mayor  in  returning  an  ordi- 
nance to  the  council  without  approval  may  submit  with  his  objections 
thereto  a substitute  ordinance,  and  such  substitute  ordinance  may  be 
considered  at  once  after  the  action  upon  the  mayor’s  disapproval  of 
the  original  ordinance. 

With  respect  to  appropriations,  there  has  been  in  recent  years  a 
tendency  to  increase  very  materially  the  governor’s  control.  Under 
the  Maryland  budget  amendment  of  1916,  which  is  commented  upon  in 
the  pamphlet  dealing  with  state  and  local  finance,  the  governor  sub- 
mits the  general  state  budget  to  the  two  houses  of  the  legislature,  and 
the  legislative  bodies  have  no  authority  to  increase  the  items  in  the  bud- 
get so  proposed.  However,  in  view  of  the  fact  that  the  governor  pre- 
pares the  budget  which  the  legislature  cannot  increase,  the  governor’s 
veto  power  over  this  matter  was  withdrawn  in  Maryland.  Under  a 
Massachusetts  budget  amendment  of  1918  the  governor  also  submits  a 
proposed  budget,  but  the  general  court  of  that  state  retains  power  to  in- 
crease or  otherwise  change  the  items  of  the  budget.  However,  the 
governor  is  at  the  same  time  vested  with  power  to  veto  items  of  the 
budget  or  parts  of  items  or  to  reduce  items. 

In  the  various  ways  just  indicated  above,  the  governor’s  control 
over  legislation  has  been  materially  increased.  In  the  main,  however, 
the  control  over  legislation  vested  by  state  constitutions  in  the  governor 
is  a negative  control.  Aside  from  the  few  cases  which  have  just  been 
commented  upon,  the  governor’s  veto  power  in  Illinois  and  other  states 
is  a power  of  preventing  action  and  not  one  of  positive  share  in  the  leg- 
islative action  to  be  taken.  The  veto  power  as  such  has  become  in  the 
state  of  Illinois  an  almost  purely  negative  influence,  because  of  the 
fact  that  most  bills  sent  to  the  governor  are  passed  in  the  last  days  of 
the  session.  After  passing  a great  number  of  bills  toward  the  end  of  its 
session,  the  General  Assembly  in  recent  years  has  taken  a recess  in 
order  to  give  the  governor  time  to  act  upon  the  bills  which  come  to 
him.  The  General  Assembly  then  convenes  after  the  recess  to  hear  the 
governor’s  veto  messages,  but  a quorum  is  practically  never  present  at 
such  meeting,  and  there  is  therefore  no  power  either  of  overcoming  the 
governor’s  veto  or  of  taking  advantage  of  any  suggestions  which  the 
governor  may  have  made  for  the  improvement  of  legislation.  The  gov- 
ernor’s power  through  the  exercise  of  the  veto  is  for  this  reason  al- 
most purely  negative  in  this  state,  both  with  respect  to  appropriations 
and  with  respect  to  general  legislation ; although  an  affirmative  influ- 
ence is  exercised  by  the  veto  power  with  respect  to  the  rather  small 
number  of  bills  which  may  come  to  the  governor  well  before  the  end  of 
the  legislative  session. 

The  constitution  of  1870  provides  that  the  governor  shall  at  the 
commencement  of  each  session  and  at  the  close  of  his  term  of  office  give 
to  the  General  Assembly  information  by  message  of  the  condition  of  the 
state  and  shall  recommend  such  measures  as  he  shall  deem  expedient. 


3 Hurd’s  Revised  Statutes,  Chap.  24,  Sec.  193a. 


573 


It  also  requires  that  he  shall  account  to  the  General  Assembly  and  ac- 
company his  message  with  a statement  of  all  moneys  received  and  paid 
out  by  him  from  any  funds  subject  to  his  order,  with  vouchers,  and 
at  the  commencement  of  each  regular  session,  present  estimates  of  the 
amount  of  money  required  to  be  raised  by  taxation  for  all  purposes. 

The  governor  has,  of  course,  always  sent  messages  to  the  General 
Assembly  recommending  the  measures  which  he  thinks  should  be  en- 
acted. Under  the  Civil  Administrative  Code  of  1917,  the  governor  at 
the  session  of  1919  prepared  a budget  which  was  submitted  to  the  two 
houses  of  the  General  Assembly  as  the  recommendation  of  the  gov- 
ernor. This  budget  was  substantially  enacted  by  the  two  houses,  in  so 
far  as  the  matters  covered  by  it  affected  the  offices  immediately  de- 
pendent upon  the  governor. 

The  governor’s  greatest  influence  in  legislation  is  exercised  in  a 
manner  not  covered  by  the  text  of  the  constitution  or  by  the  terms  of 
legislation.  If  the  governor  and  the  majority  of  the  two  houses  of  the 
General  Assembly  belong  to  the  same  political  party,  the  governor  may 
exercise  a large  influence  over  the  actual  character  and  quality  of  legis- 
lation. Such  influence  depends,  of  course,  primarily  upon  the  per- 
sonality of  the  governor  and  upon  the  effectiveness  with  which  he  is 
able  to  co-operate  with  the  two  houses,  even  when  they  belong  to  the 
same  party.  In  some  cases  in  Illinois  and  in  other  states  there  has 
during  certain  periods  been  a very  close  and  effective  relationship 
between  the  governor  and  the  General  Assembly  in  the  actual  working 
out  of  legislative  policies.  However,  this  close  relationship  is  often- 
times interfered  with,  by  virtue  of  the  fact  that  one  or  the  other  or 
both  houses  may  have  majorities  which  are  politically  antagonistic  to 
the  governor.  Although  there  have  been  in  recent  years  few  cases  in 
Illinois  in  which  there  has  been  a definite  partisan  division  in  the  Gen- 
eral Assembly  with  respect  to  matters  of  legislation,  party  influences 
will  prevent  close  co-operation  between  the  governor  and  legislative 
houses  controlled  by  the  party  in  political  opposition  to  him. 


General  Assembly  as  a canvassing  body.  By  section  4,  arti- 
cle V of  the  constitution,  the  speaker  of  the  house  of  representatives 
opens  and  publishes  the  returns  of  elections  for  state  officers,  “in  the 
presence  of  a majority  of  each  house  of  the  general  assembly.”  In 
case  of  a tie,  the  general  assembly  chooses  one  of  the  highest  candi- 
dates. Contested  elections  are  determined  by  joint  ballot  “in  such  man- 
ner as  may  be  prescribed  by  law.”  These  functions  have  made  difficulty 
in  some  cases  because  delays  have  taken  place  in  the  organization  of 
the  house  of  representatives.  In  case  of  a close  election  the  consti- 
tutional provisions  vest  an  important  political  power  in  the  general 
assembly. 


Legislative  appointments.  Under  the  constitution  of  1818  a 
large  power  of  appointment  was  vested  in  the  General  Assembly. 


574 


This  power  of  appointment  was  not  satisfactorily  exercised,  and  by 
the  constitution  of  1848  it  was  explicitly  provided  that  no  officer  should 
be  appointed  or  elected  by  the  General  Assembly.  This  provision 
is  repeated  in  the  constitution  of  1870.4 

One  of  the  most  disturbing  influences  with  respect  to  the  func- 
tion of  legislation  before  1913  was  the  duty  imposed  upon  the  state 
legislatures  to  elect  United  States  Senators.  Since  the  adoption  of 
the  federal  constitutional  amendment  for  the  popular  election  of 
United  States  Senators,  this  distinctly  political  function  has  disap- 
peared, and  its  disappearance  has  been  of  advantage  in  avoiding  the 
choice  of  legislators  for  other  than  legislative  purposes. 

The  non-legislative  functions  of  the  Illinois  General  Assembly 
have  since  1818  steadily  tended*  to  decrease.  The  function  of  making 
appointments  disappeared  in  1848,  and  that  of  electing  United 
States  Senators  in  1913.  These  non-legislative  functions  are  now 
relatively  unimportant,  although  they  do  deserve  attention  in  the  fram- 
ing of  a new  constitution  or  the  amendment  of  the  existing  consti- 
tution. 


Functions  in  connection  with  appointment  and  removal  of 
officers.  The  constitution  of  Illinois  contains  several  provisions 
with  respect  to  the  matter  here  dealt  with.  In  the  case  of  officers 
whose  appointment  or  election  is  not  otherwise  provided  by  law,  the 
governor  nominates,  and  by  and  with  the  advice  and  consent  of  the 
Senate,  appoints.  This  power  of  senate  confirmation  is  one  which  is 
quite  common  in  the  American  states  and  is  also,  of  course,  established 
by  the  constitution  of  the  United  States.  This  senatorial  control  over 
executive  appointments  dates  from  the  period  in  earlier  American 
history  when  it  was  deemed  necessary  to  set  up  an  executive  council 
or  to  have  the  senate  act  as  such  a council  for  the  control  of  execu- 
tive functions.  It  is  a remnant  of  the  early  distrust  of  executive 
power,  which  has  now  largely  disappeared.  The  exercise  of  the 
power  of  Senate  confirmation  has  occasioned  some  difficulty  in  Illinois, 
but  has  probably  not  proved  of  very  great  use. 

The  constitution  provides  in  Article  VI,  section  30,  that  the 
General  Assembly  may  for  cause  entered  on  the  journals  upon  due 
notice  and  opportunity  of  defense  remove  from  office  any  judge  upon 
the  concurrence  of  three-fourths  of  all  the  members  elected  to  each 
house.  The  more  common  provision  with  respect  to  removal  by  the 
two  houses  is  that  removal  may  be  made  by  address  of  the  legislature 
or  by  two-thirds  of  the  members  elected  to  each  house.  Only  in  a 
very  clear  case  would  this  power  be  exercised  in  any  state,  and  in 
Illinois  the  requirement  of  a vote  of  three-fourths  of  the  members 
elected  to  each  house  is  likely  to  make  the  power  of  removal  prac- 
tically incapable  of  exercise  even  in  the  cases  where  its  use  may  be 
desired. 


4 For  a discussion  of  legislative  appointments,  see  Retnsch,  F.  S.,  Ameri- 
can Legislatures  and  Legislative  Methods,  p.  222. 


575 


The  state  of  Massachusetts  provides  that  all  judicial  officers  shall 
hold  their  offices  during  good  behavior,  but  that  the  governor  with  the 
consent  of  the  council  may  remove  them  upon  address  of  both  houses 
of  the  legislature.  This  power  has  been  exercised  upon  several  oc- 
casions in  Massachusetts.  It  will  be  noted  that  the  power  in  Massa- 
chusetts under  the  constitution  of  1780  is'  vested  in  the  governor  with 
the  advice  of  the  council  to  remove  upon  the  address  of  both  houses. 
The  council  is  a popularly  elected  body  serving  as  an  advisory  board 
to  the  governor.  In  1918  the  power  of  removing  judges  was  still 
further  increased  in  Massachusetts  by  the  adoption  of  a constitutional 
amendment  providing  that : “The  Governor  with  the  consent  of  the 

council  may  after  due  notice  and  hearing  retire  them  [judges]  because 
of  advanced  age  or  mental  or  physical  disability ; such  retirement  may 
be  subject  to  any  provisions  made  by  law  as  to  pensions  or  allowances 
payable  to  such  officers  upon  their  voluntary  retirement.”  In  Massa- 
chusetts there  is  also  a power  to  remove  by  impeachment. 

The  power  of  removal  by  the  two  houses  applies  only  to 
judges  in  Illinois.  With  respect  to  other  civil  officers,  the  constitution 
also  provides  for  removal  by  impeachment.  The  house  of  repre- 
sentatives by  a majority  of  all  the  members  elected  must  concur 
in  presenting  impeachment  charges.  Such  charges  are  tried  by 
the  senate,  and  when  sitting  for  that  purpose  the  senators  are 
under  oath  or  affirmation  to  do  justice  according  to  the  law,  and 
evidence.  No  person  may  be  convicted  without  the  concurrence 
of  two-thirds  of  the  senators  elected. 

Judge  Theophilus  W.  Smith  of  the  Illinois  Supreme  Court 
was  impeached  in  1833  and  narrowly  escaped  conviction.  After 
his  acquittal  by  the  senate,  the  house  by  two-thirds  vote  passed  a 
resolution  for  his  removal  by  address,  but  the  resolution  failed  in 
the  senate.  The  remarks  of  Governor  Thomas  Ford  with  respect 
to  this  impeachment  proceeding  still  have  application : “After- 

wards, other  efforts  were  made  to  impeach  judges  for  misconduct 
but  without  success.  So  that  latterly  the  legislature  has  refused 
even  to  make  an  effort  to  bring  a judge  to  trial;  knowing  that 
whether  guilty  or  innocent  such  an  effort  can  have  no  other  result 
than  to  increase  the  length  and  expenses  of  the  session.”  5 

In  1839  a memorial  was  presented  to  the  house  of  representa- 
tives praying  that  a judge  “be  impeached  and  addressed  out  of 
office,”  and  this  memorial  was  made  the  basis  for  the  adoption 
of  a political  resolution  that  a change  in  the  membership  of  the 
Supreme  Court  was  desirable,  although  the  judge  whose  removal 
was  petitioned  for  was  not  a member  of  that  court.  In  1847  a 
number  of  petitions  for  the  removal  of  a judge  were  presented  to 
the  house  of  representatives,  and  one  was  presented  to  the  senate.6 
The  cases  above  referred  to  all  related  to  judges,  although  the 
machinery  of  impeachment  may  be  employed  against  other  officers. 
Neither  impeachment  nor  removal  of  judges  by  the  two  houses 
is  likely  to  be  employed  except  in  an  extreme  case,  and  if  easier 

5 Senate  Journal,  1833.  Appendix.  Ford,  Thomas,  History  of  111.  166-168. 

6 House  Journal.  1839.  p.  144.  House  Journal.  1847,  pp.  228,  265,  266,  328, 
3 87.  Senate  Journal.  1847.  p.  196. 


576 


methods  of  removal  are  desired,  neither  of  these  plans  can  be 
relied  upon. 

The  problem  of  removal  both  of  judges  and  of  others  should 
be  considered,  of  course,  in  connection  with  the  much  broader 
problem  of  removing  lesser  state  and  local  officers.  Formal  and 
perhaps  somewhat  cumbersome  methods  of  removing  important 
officers  may  be  desirable,  because  the  ordinary  methods  of  removal 
could  hardly  be  made  applicable  to  the  governor  and  other  im- 
portant state  officers  or  to  justices  of  the  Supreme  Court,  because 
even  though  less  formal  methods  were  technically  applicable,  they 
are  not  likely  to  be  employed  in  such  cases.  Impeachment  as  a 
method  of  removal  has  been  infrequently  employed  in  this  country 
but  in  a number  of  important  cases  it  has  been  an  effective  and 
useful  instrument.  Perhaps,  however,  it  may  be  worth  while  to 
consider  whether  removal  by  the  two  houses  may  not  be  made 
somewhat  simpler  than  it  now  is.7 


Power  of  the  courts  with  reference  to  legislation.  The  power 
of  the  courts  to  declare  laws  unconstitutional  is  expressly  recog- 
nized by  two  provisions  of  the  present  constitution  of  Illinois. 
Ara.  IV,  Sec.  13  provides  the  conditions  of  invalidity  of  acts  be- 
cause of  defective  title  or  because  such  acts  embrace  more  than  one 
subject  matter,  and  pretty  clearly  implies  that  the  power  to  de- 
termine invalidity  shall  be  exercised  by  the  courts.  In  Art.  VI, 
Sec.  11  of  the  constitution  it  is  expressly  provided  that  matters 
regarding  the  validity  of  a statute  may  not  be  finally  determined 
by  the  appellate  courts. 

The  exercise  by  the  courts  of  the  power  to  declare  laws  uncon- 
stitutional is  one  of  the  important  features  of  our  governmental 
system,  and  the  courts  in  Illinois  have  frequently  exercised  this 
power.  A full  discussion  of  the  power  of  the  courts  to  declare  laws 
unconstitutional  and  of  the  manner  in  which  this  power  has  been 
exercised  in  Illinois  will  be  found  in  a separate  pamphlet  devoted 
to  the  judicial  department.  It  is  sufficient  here  merely  to  call  at- 
tention to  this  power  in  connection  with  a general  discussion  of  the 
relation  of  other  departments  of  the  state  government  to  the  prob- 
lem0 of  legislation. 

The  constitution  of  1870  provides  that  “all  judges  of  courts  of 
record  inferior  to  the  Supreme  Court  shall  on  or  before  the  first 
day  of  June  of  each  year  report  in  writing  to  the  judges  of  the  Su- 
preme Court  such  defects  and  omissions  in  the  laws  as  their  ex- 
perience may  suggest ; and  the  judges  of  the  Supreme  Court  shall 
on  or  before  the  first  dav  of  Januarv  of  each  year  report  in  writing 
to  the  governor  such  defects  and  omissions  in  the  constitution  and 
laws  as  they  mav  find  to  exist,  together  with  appropriate  forms  of 
bills  to  cure  such  defects  and  omissions  in  the  laws.”  Provisions 

7 For  a discussion  of  the  whole  subiect.  of  removal  of  iuderes  and  of  im- 
peachment. with  special  reference  to  Massachusetts,  see  Massachusetts  Con- 
stitutional Convention  Bulletin  No.  36  entitled  “The  removal  of  Judges  in  Massa- 
chusetts.” 


577 


with  respect  to  the  reporting  of  defects  in  the  laws  by  judges  were 
first  introduced  by  statute  in  Illinois,  and  this  reporting  of  defects 
was  of  some  effectiveness  in  connection  with  the  revision  of  the 
statutes  authorized  in  1869. 8 

Attention  should  be  called,  however,  to  the  fact  that  the  duty 
to  report  defects  in  the  laws  was  at  first  imposed  largely  as  a means 
of  justifying  a further  appropriation  to  supplement  the  salaries  of 
judges.  The  salaries  of  circuit  judges  had  been  fixed  at  a very 
low  figure  by  the  constitution  of  1848,  and  some  subterfuge  was 
desired  as  a basis  for  appropriating  further  money  to  these  judges. 
The  constitutional  provision  requiring  the  reporting  of  defects  in 
the  laws  was  then  taken  over  from  statute,  and  has  been  copied 
into  the  constitutions  of  several  other  states  since  1870.  This  con- 
stitutional provision  has  since  1870  been  almost  entirely  ineffective. 
The  only  case  in  which  a definite  effort  was  made  to  bring  it  into 
operation  was  in  connection  with  primary  election  legislation  in 
this  state.  After  several  unsuccessful  efforts  had  been  made  to 
enact  a constitutional  primary  election  law,  Governor  Deneen  on 
July  14,  1909,  addressed  a letter  to  the  chief  justice  of  the  Supreme 
Court,  referring  to  the  provision  of  Art.  VI,  Sec.  31  of  the  consti- 
tution, and  requesting  that  the  court  redraft  provisions  of  the 
primary  election  law  held  unconstitutional  so  as  to  eliminate  there- 
from all  unconstitutional  features  and  to  correct  other  defects. 
The  judges  of  the  Supreme  Court  declined  to  comply  with  this  re- 
quest, saying  that  there  was  no  obligation  upon  them  to  do  so.9 


8 Laws  1869.  pp.  49  and  60. 

9 Correspondence  between  governor  and  judges,  ,243  111.  9 (1909). 


578 


IX.  LEGISLATIVE  POWERS. 


The  prevailing  theory  with  respect  to  the  state  legislature  is  that 
it  has  all  powers  not  clearly  denied  to  it  by  the  constitutions  of  the 
United  States  and  of  the  state.  The  state  constitution  is  ordinarily 
held  to  be  a limitation  upon  the  power  of  the  legislature  and  not  a 
grant  of  power  to  that  body.1  And,  as  a result  of  this  it  is  often  urged 
that,  inasmuch  as  state  legislatures  have  all  power  not  forbidden  to 
them  by  their  state  constitutions,  provisions  in  constitutions  expressly 
conferring  power  upon  legislatures  are  mere  surplusage.  However, 
such  grants  have  in  many  cases  become  necessary  in  order  to  loosen 
the  effect  of  broad  constitutional  guarantees  as  interpreted  by  the 
courts.  Many  of  the  constitutional  provisions  which  have  of  late  been 
appearing  in  the  several  states  are  justified  because  in  legal  fact  they 
do  broaden  legislative  power,  although  in  theory  they  are  not  sup- 
posed to  have  such  an  effect. 

When  broad  constitutional  provisions  are  interpreted  in  such  a 
manner  as  to  limit  the  legislative  department  in  practically  anything 
that  it  may  do,  specific  authorizations  to  act  may  often  become  neces- 
sary in  order  to  re-vest  in  the  General  Assembly  powers  which  have 
been  held  to  violate  such  broad  guarantees,  or  which  are  likely  to  be 
so  held. 

A few  illustrations  will  make  clear  the  fact  that  some  state  con- 
stitutional provisions  serve  to  extend  legislative  power.  Of  the  con- 
stitutional amendments  adopted  by  the  people  of  Ohio  in  1912,  the 
following  four,  among  others,  related  to  social  and  industrial  legisla- 
tion: (1)  Authorizing  legislation  with  respect  to  mechanics  liens. 

(2)  Authorizing  legislation,  regulating  and  fixing  hours  of  labor, 
establishing  a minimum  wage,  and  providing  for  comfort,  health, 
safety  and  general  welfare  of  employes.  (3)  Permitting  compulsory 
workmen’s  compensation.  (4)  Prescribing  an  eight-hour  day  on 
public  works. 

At  least  two  of  these  amendments  were  occasioned  by  judicial 
decisions  that  legislation  was  forbidden  by  broad  state  constitutional 
language  equivalent  to  the  “due  process”  clause  in  other  constitutions. 
The  other  authorizations  in  these  amendments  were  inserted  as  a 
matter  of  caution  to  prevent  judicial  annulment.  Two  of  these 
amendments  expressly  provided  that  “no  other  provision  of  the  con- 
stitution shall  impair  or  limit”  the  powers  so  granted. 

A provision  was  inserted  in  the  Michigan  constitution  of  1908 
that  “the  legislature  shall  have  power  to  enact  laws  relative  to  the 
hours  and  conditions  under  which  women  and  children  may  be  em- 


1 People  v.  Nellis.  249  111.  12  (1911). 


579 


ployed,”  and  this  provision  relieved  such  legislation  from  attack  on 
the  ground  that  it  violated  the  “due  process”  clause  of  the  Michigan 
constitution.2 

The  fact  that  the  constitution  of  Illinois  authorizes  legislation  re- 
garding the  safety  of  miners  apparently  gives  to  the  General  As- 
sembly of  this  state  greater  legislative  power  as  to  this  subject  than 
as  to  the  health  of  miners.3  Article  IV,  Section  29  of  the  constitu- 
tion of  1870  with  respect  to  the  safety  of  miners  can  thus  be  readily 
justified  in  view  of  subsequent  decisions  of  the  Supreme  Court  of  this 
state.  Article  IV,  Section  30  of  the  constitution  of  1870  authorizing 
the  opening  of  roads  and  cartways  for  private  and  public  use  was  ex- 
pressly made  necessary  by  a judicial  decision,4  and  an  amendment 
of  1878  to  Section  31  of  the  same  article  (although  it  seems  to  be  more 
detailed  than  is  necessary  in  a constitution),  was  made  necessary  by 
judicial  decision.5 

These  and  other  provisions  have  been  inserted  into  state  con- 
stitutions because  it  is  desired  that  legislatures  should  exercise  certain 
powers,  and  experience  has  proven  that  without  express  constitutional 
grants,  state  courts  will  deny  such  powers  to  the  legislatures.  State 
constitutions  contain  a number  of  provisions  authorizing  different 
types  of  labor  legislation  or  themselves  laying  down  legal  rules  to  be 
observed.  Such  provisions  find  their  justification  in  view  of  the 
statements  just  made,  although  they  are  not  properly  matters  of  funda- 
mental law.  For  example,  the  decision  of  the  court  of  appeals  of  New 
York  that  compulsory  workmen’s  compensation  could  not  constitu- 
tionally be  established  in  that  state,  rendered  necessary  a constitu- 
tional amendment  in  that  state  in  1913,  and  the  view  of  the  New 
York  court  upon  this  matter  has  been  responsible  for  numerous  con- 
stitutional amendments  of  the  same  character  in  other  states,  although 
such  constitutional  provisions  are  probably  now  no  longer  necessary, 
because  the  courts  have  come  to  take  a more  liberal  view  with  re- 
spect to  compulsory  workmen’s  compensation  legislation. 

The  whole  movement  for  the  limitation  of  labor  upon  public 
works  to  eight  hours  a day  is  one  which  has  found  expression  in  state 
constitutions,  and  such  expression  in  state  constitutions  was  rendered 
necessary,  if  such  a limitation  were  to  be  obtained,  because  of  the 
fact  that  decisions  of  the  highest  courts  in  New  York,  Colorado  and 
other  states  held  that  the  placing  of  such  limitations  was  beyond  the 
constitutional  power  of  state  legislatures,  under  the  “due  process  of 
law”  and  “equal  protection  of  the  laws”  clauses. 

What  is  said  above  explains  why  numerous  matters  not  properly 
fundamental  have  found  their  way  into  state  constitutions.  Where  it 
is  desired  by  the  people  that  a certain  thing  be  done,  and  the  state 
supreme  courts  hold  that  broad  state  constitutional  provisions  pre- 
vent that  thing  being  done,  the  only  possible  alternative  is  that  of 
placing  an  express  provision  as  to  the  matter  in  the  state  constitution. 

2 Proceedings  and  Debates,  Michigan  Constitutional  Convention,  1003-1005; 
Withy  v.  Bloem,  163  Mich.  419. 

3 Millett  v.  People,  117  111.  294  (1886);  Starne  v.  People,  222  111.  189  (1906). 

4 Nesbitt  v.  Trumbo,  39  111.  110  (1866). 

5 Updike  v.  Wright.  81  111.  49  (1876). 


580 


Of  course,  the  placing  of  such  provisions  in  state  constitutions 
would  be  entirely  ineffective  were  the  things  to  be  done  also  held  un- 
constitutional as  violating  the  “due  process”  and  “equal  protection 
of  the  laws”  clauses  of  the  fourteenth  amendment  to  the  United 
States  constitution.  However,  the  reason  for  placing  these  pro- 
visions in  state  constitutions  is  that  the  highest  state  courts  have  in 
many  cases  been  stricter  in  their  interpretation  of  broad  clauses  in  the 
state  constitutions  than  the  United  States  Supreme  Court  has  been  in 
interpreting  equivalent  or  identical  clauses  of  the  constitution  of  the 
United  States.  What  is  done  by  these  constitutional  grants  of  power, 
therefore,  is  in  large  part  to  prevent  the  state  supreme  courts  from 
taking  a narrower  view  as  to  what  constitutes  “due  process  of  law” 
than  does  the  United  States  Supreme  Court,  and  this  is  substantially 
the  only  effect  of  such  state  constitutional  grants  of  authority.  How- 
ever, such  grants  have  been  necessary  in  many  cases  in  order  to  per- 
mit the  states  to  free  themselves  from  limitations  placed  upon  legis- 
lative power  by  a narrow  construction  of  “due  process  of  law”  and 
of  other  provisions  in  state  constitutions. 

Another  alternative  may  present  itself  with  respect  to  matters 
such  as  are  here  dealt  with.  The  “due  process  of  law”  clause  in  the 
constitution  of  Illinois,  and  that  in  Article  IV,  Section  22  of  the  con- 
stitution regarding  the  conferring  of  special  privileges,  immunities 
and  franchises  by  special  legislation  have  been  construed  broadly  in 
this  state  as  similar  clauses  have  been  in  a number  of  other  states ; and 
as  construed  by  the  state  courts  may  prevent  the  enactment  of  legis- 
lation which  would  be  upheld  by  the  United  States  Supreme  Court 
as  not  in  violation  of  substantially  identical  federal  limitations  upon 
the  states.  So  far  as  actual  advantage  is  concerned,  the  federal  pro- 
vision that  no  state  shall  “deprive  any  person  of  life,  liberty  or  prop- 
erty without  due  process  of  law  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws”  constitutes  a complete 
guaranty  against  improper  state  action.  These  federal  limitations 
upon  the  states  may  and  ultimately  do  obtain  a uniform  interpretation 
for  the  whole  country.  Identical  state  constitutional  limitations,  on 
the  other  hand,  are  finally  interpreted  for  a particular  state  by  the 
highest  court  of  that  state,  and  in  this  manner  a state  oftentimes  has 
imposed  upon  its  legislature  limitations  of  a much  stricter  character 
than  those  imposed  by  the  same  language  in  the  constitution  of  the 
United  States.  The  presence  of  duplicate  federal  and  state  limitations 
upon  the  states,  the  one  interpreted  finally  and  uniformly  for  the 
whole  country  by  the  United  States  Supreme  Court,  and  the  other 
interpreted  somewhat  differently  for  the  particular  states  by  the  state 
supreme  courts,  are  the  things  which  here  make  the  difficulty,  and  no 
rights  which  may  need  to  be  judicially  protected  would  be  in  any  way 
interfered  with  by  removing  guarantees  of  this  type  from  the  state 
constitution.  To  say  that  the  removing  of  such  a duplicate  guaranty 
from  the  state  constitution  would  impair  rights  which  should  be  pro- 
tected, is  to  say  that  the  supreme  court  of  the  United  States  cannot 
be  relied  upon  to  protect  such  rights  adequately  under  an  identical 
federal  constitutional  provision. 


581 


There  is  great  value  in  leaving  out  of  constitutions  all  matters  of 
detail  and  all  matters  in  the  nature  of  legislative  grants,  if  such  mat- 
ters can  be  omitted  and  at  the  same  time  the  framers  of  the  consti- 
tution can  be  sure  that  the  things  they  desire  to  have  done  may  be 
accomplished.  If  grants  with  respect  to  legislative  authority  are  placed 
in  a constitution,  there  is  always  danger  that  such  grants  will  them- 
selves be  construed  as  limitations.  For  example,  the  framers  of  the 
Nebraska  constitution  of  1876  provided  that  the  General  Assembly  of 
that  state  should  have  authority  to  establish  reform  schools  for  chil- 
dren under  the  age  of  sixteen  years.  This  provision  was  actually  un- 
necessary even  as  a means  of  relieving  the  General  Assembly  from  any 
limitations  which  might  have  been  imposed  by  the  court,  but  the 
granting  of  authority  to  the  General  Assembly  to  establish  one  type 
of  reform  school  was  construed  as  limiting  the  General  Assembly  to 
the  establishment  of  that  type  of  reform  school  only,  so  that  when  the 
General  Assembly  wanted  to  permit  persons  of  a somewhat  greater 
age  to  be  sent  to  a reform  school,  this  was  held  to  be  beyond  the 
legislative  power.  So  a constitutional  amendment  authorizing  the 
establishment  of  a particular  type  of  workmen’s  compensation  is, 
under  the  decisions  of  this  country,  almost  certain  to  be  held  to  pro- 
hibit the  establishment  of  any  other  type  of  workmen’s  compensation. 
In  California  a constitutional  provision  was  adopted  in  1900  author- 
izing the  enactment  of  a certain  type  of  direct  primary  legislation, 
and  this  was  held  to  prohibit  the  enactment  of  any  other  type  of  direct 
primary  legislation. 

That  is,  a provision  in  a constitution  which  seeks  to  grant  power 
or  which  seeks  to  determine  the  details  of  proceedings  is  generally 
held  by  the  courts  of  this  country  to  prohibit  the  doing  of  the  things  in 
any  other  manner  than  that  covered  by  the  terms  of  the  constitution. 
Many  provisions  which  are  inserted  for  the  purpose  of  granting  au- 
thority to  the  General  Assembly  do  not  increase  that  body’s  power, 
but  serve  unintentionally  as  a means  of  limiting  the  power  sought  to 
be  conferred.  This  is  the  effect  of  article  XI,  section  14  of  the  present 
constitution  regarding  the  use  of  the  power  of  eminent  domain  to  con- 
demn the  property  and  franchises  of  corporations.6 

Of  course  it  would  have  been  possible  to  construe  directions  or 
grants  of  power  to  the  legislature  as  merely  authorizing  or  command- 
ing the  doing  of  the  particular. thing,  and  as  not  limiting  the  legislature 
as  to  other  things  which  it  might  do  with  respect  to  the  same  matter. 
However,  this  view  has  not  been  taken  by  the  courts,  and  the  view  has 
usually  been  taken  that  every  provision  of  a state  constitution  should 
be  construed  as  limiting  legislative  power  to  the  greatest  possible  ex- 
tent. It  has  been  true  in  this  country  that  for  a number  of  years  every 
provision  placed  in  a constitution  affecting  the  legislature  directly  or 
indirectly  (even  though  the  provision  is  intended  to  enlarge  the  power 
of  the  legislature)  becomes  at  once  by  interpretation  a limitation  of  a 
general  grant  of  power.  A provision  once  inserted  into  a state  consti- 
tution, no  matter  for  what  purpose  it  may  have  been  inserted,  is  given 
a broad  effect  as  a limitation  upon  such  power,  and  this  judicial  view 


6L.  S.  & M.  S.  Ry.  Co.  v.  C.  & W.  I.  R.  R.  Co.,  97  111.  506  (1881). 


582 


has  had  some  justification  in  view  of  the  fact  that  the  whole  develop- 
ment in  state  constitutions  until  recently  has  been  toward  imposing  ex- 
press limitations  upon  the  power  of  legislatures. 

The  matter  here  dealt  with  is  sometimes  referred  to  as  the 
development  of  implied  limitations  upon  the  legislature.  That  is,  from 
a provision  not  intended  primarily  as  a limitation,  or  from  a provision 
which  may  have  been  intended  to  compel  a certain  type  of  action  with 
respect  to  a matter,  further  limitations  are  implied  upon  the  legislature 
with  respect  to  that  matter.  For  example  in  the  case  of  People  v. 
Hutchinson,7  the  Supreme  Court  had  under  consideration  the  consti- 
tutional provision  commanding  the  General  Assembly  to  apportion  the 
state  every  ten  years  after  a federal  census.  There  was  no  express 
limitation  upon  the  power  of  the  General  Assembly  to  apportion  at 
other  times,  and  had  judicial  construction  followed  what  is  still  the 
legal  theory  that  the  legislature  has  all  power  not  denied,  this  provision 
could  well  have  been  construed  to  command  senatorial  apportionments 
after  each  decennial  census,  and  to  permit  senatorial  apportionments 
at  such  other  times  as  the  General  Assembly  thought  desirable.  How- 
ever, the  Supreme  Court  took  the  view  that  the  constitution  limits  the 
apportionment  to  one  in  each  ten-year  period  after  a federal  census, 
thus  extending  the  constitutional  limitation  beyond  its  precise  terms. 
We  have  here  a type  of  judicial  action  not  dissimilar  from  that  re- 
ferred to  above  in  connection  with  the  Nebraska  reform  school,  and  it 
is  probable  that  the  Supreme  Court  in  the  matter  of  apportionments 
was  carrying  out  what  was  intended  by  the  framers  of  the  constitution 
of  1870. 

The  point  here  being  dealt  with,  however,  does  not  depend  upon 
whether  the  state  courts  have  been  justified  in  implying  limitations,  or 
upon  the  question  as  to  what  was  intended  by  the  framers  of  the  con- 
stitutions. The  actual  fact  is  that  a narrow  construction  of  state  con- 
stitutional provisions  adverse  to  the  powers  of  the  General  Assembly 
has  been  largely  occasioned  by  the  increasing  detail  in  state  constitu- 
tions, and  the  further  fact  is  equally  important  that  this  narrow  in- 
terpretation has  been  responsible  to  a large  extent  for  the  still  further 
increase  in  constitutional  detail. 

The  earlier  state  constitutions  were  comparatively  short,  and  con- 
tained little  except  a framework  of  government.  Many  of  the  later 
constitutions  are  very  long  and  deal  with  a great  variety  of  matters. 
The  provisions  of  present  state  constitutions  may  for  convenience  be 
classified  roughly  into  five  groups : 

(1)  Those  dealing  with  the  organization  and  operation  of  govern- 
ment. 

(2)  Those  imposing  limitations  upon  legislative  power. 

(3)  Those  incorporating  into  the  constitution  matters  of  legisla- 
tion. 

(4)  Those  specifically  granting  powers  to  the  legislature. 

(5)  Those  requiring  that  the  legislature  take  certain  action. 

Enough  has  perhaps  been  said  above  to  indicate  a justification  for 

placing  in  constitutions  a number  of  provisions  specifically  granting 


* 172  111.  486  (1898). 


583 


power  to  the  legislature.  Such  provisions  have  in  many  cases  been 
clearly  made  necessary  by  judicial  decisions,  and  substantially  the  only 
way  to  avoid  such  provisions  is  to  establish  some  plan  by  which  broad 
constitutional  limitations  upon  the  legislatures  may  be  uniformly  in- 
terpreted for  the  whole  country. 

In  the  first  state  constitutions  there  were  practically  no  limitations 
upon  legislative  power  except  those  found  in  the  bill  of  rights.  Partly 
because  of  dissatisfaction  with  actions  which  public  sentiment  forced 
the  legislatures  to  take  and  partly  because  of  legislative  incompetence 
and  corruption,  there  has  been  since  the  revolution  a constantly  in- 
creasing mass  of  limitations  upon  legislative  action.  Now  such  limita- 
tions form  a large  part  of  the  constitutional  text.  In  the  Alabama 
constitution  of  1901  for  example,  of  the  287  articles,  thirty-six  are 
devoted  to  the  declaration  of  rights,  about  thirty  others  to  legislative 
procedure  and  related  matters,  and  eight  to  a detailed  enumeration  of 
matters  with  respect  to  which  local  and  special  legislation  is  forbidden 
or  strictly  regulated. 

In  the  historical  outline  of  the  development  of  legislative  power  in 
Illinois,  appearing  in  the  earlier  part  of  this  pamphlet,  a brief  discus- 
sion may  be  found  of  the  development  of  limitations  upon  legislative 
power  in  this  state.  Difficulties  with  respect  to  legislative  procedure 
have  caused  the  introduction  of  a number  of  limitations  such  as  those 
with  respect  to  titles  and  amendment  by  reference. 

Even  more  important  has  been  the  development  of  specific  limita- 
tions upon  the  powers  of  the  General  Assembly  itself.  The  three  most 
important  types  of  limitations  in  Illinois  upon  the  actual  powers  of  the 
General  Assembly  are  those  with  respect  to  banking,  state  and  muni- 
cipal debts,  and  special  legislation.  Each  of  these  sets  of  limitations 
has  a different  historical  explanation  and  these  limitations  have  prob- 
ably without  question  proved  effective  to  prevent  the  continuance  of 
abuses  which  once  existed  in  the  state.  In  the  1869  session  of  the 
Illinois  General  Assembly,  four  large  volumes  of  special  legislation 
were  enacted,  and  this  legislation  very  clearly  could  not  have  received 
adequate  attention.  Such  legislation  was  undesirable,  and  was  effec- 
tively prevented  by  Article  IV,  Section  22  of  the  constitution  of  1870, 
and  by  limitations  found  elsewhere  in  that  constitution.  There  are 
some  objections  to  a detailed  enumeration  of  subjects  upon  which 
special  legislation  is  forbidden,  and  it  is  probable  that  the  plan  adopted 
by  Michigan  in  1908  is  more  effective  than  the  detailed  list  of  pro- 
hibitions in  Illinois.  Under  the  Michigan  constitution : “The  legisla- 
ture shall  pass  no  local  or  special  act  in  any  case  where  a general  act 
can  be  made  applicable,  and  whether  a general  act  can  be  made  applic- 
able shall  be  a judicial  question.  No  local  or  special  act,  except  acts 
repealing  local  or  special  acts  in  effect  January  1,  1909,  and  receiving 
a two-thirds  vote  of  the  legislature  shall  take  effect  until  approved  by 
a majority  of  the  electors  voting  thereon  in  the  district  to  be  affected.” 

The  early  experience  of  the  state  with  respect  to  banking  and  in- 
ternal improvements  was  one  which  justified  the  placing  of  a definite 
check  upon  further  state  activity  in  this  field,  although  in  recent  years 
the  state  of  Illinois  has  somewhat  altered  its  attitude  with  respect  to 


584 


internal  improvements  (through  provision  for  a deep  waterway  and 
for  a system  of  hard  roads),  and  there  is  now  a definite  movement  for 
constitutional  change  which  may  permit  the  state  to  embark  upon  farm 
loan  enterprises.  The  experience  just  prior  to  1870  with  respect  to 
municipal  aid  to  railroads  was  also  one  which  justified  the  placing  of  a 
check  upon  legislative  and  municipal  authority  with  respect  to  this 
matter.  However,  in  this  matter  also  there  is  now  a definite  agitation 
for  a change  in  order  that  municipalities  may  embark  to  a greater  de- 
gree upon  ownership  of  public  utilities.  It  is  usually  true  that  a 
same  type  of  problem  does  not  present  itself  a second  time.  Con- 
stitutional limitations  with  respect  to  banking  and  internal  im- 
provements and  perhaps  also  with  respect  to  municipal  debt  were 
placed  in  the  constitution  after  the  state  had  probably  already 
learned  a sufficient  lesson  with  respect  to  these  matters,  although 
it  is  clear  with  respect  to  special  legislation  that  some  constitu- 
tional check  was  necessary  to  stop  abuses.  However,  limitations 
once  imposed  to  meet  abuses  which  have  previously  occurred 
later  tend  to  hamper  the  state  in  things  which  it  may  desire  to  do, 
and  this  may  be  true  with  some  of  the  present  limitations  in  the 
constitution  of  Illinois. 

Attention  should  also  be  called  to  the  fact  that  there  has 
since  1870  been  a much  greater  application  by  the  courts  of  broad 
limitations  upon  the  legislative  power.  Before  1870,  “due  process 
of  law”  as  a limitation  upon  state  legislative  power  had  hardly 
developed,  and  the  series  of  decisions  holding  statutes  unconsti- 
tutional as  violations  of  “due  process  of  law”  or  as  conferring 
special  privileges,  immunities  or  franchises  by  special  law,  present 
to  the  constitutional  convention  of  1920  a problem  which  did  not 
exist  when  the  present  constitution  was  framed.  These  broad 
guarantees,  as  construed  by  the  highest  courts  of  the  states,  have 
been  to  a large  extent  responsible  for  the  introduction  into  state 
constitutions  of  numerous  specific  grants  of  authority  to  the  legis- 
latures. 

Enough  has  probably  been  said  above  to  indicate  the  reasons 
for  the  numerous  provisions  in  state  constitutions  which  expressly 
grant  powers  to  the  legislatures.  Similar  reasons  in  some  cases 
account  for  the  placing  of  legislation  in  the  constitution  itself. 
For  example,  when  the  highest  state  court  has  declared  unconsti- 
tutional a statute  limiting  labor  on  public  works  to  eight  hours 
a day  (as  was  done  in  New  York,  Colorado  and  Ohio),  the  people 
may  put  into  the  constitution  an  authorization  for  such  legisla- 
tion, but  they  may  with  equal  brevity  put  the  legislative  provision 
into  the  constitution  itself.  However,  provisions  of  this  detailed 
character  once  put  into  the  constitution  are  at  once  themselves 
construed  as  limitations  upon  legislative  power,  whether  the  con- 
stitution itself  legislates  as  to  the  matter  or  whether  it  grants 
to  the  legislature  a power  to  legislate.  Unfortunately,  many  of 
the  provisions  in  state  constitutions  which  are  really  legislative 
in  character  and  many  of  the  provisions  expressly  granting 
authority  to  the  legislature  may  be  justified  in  view  of  what  has 


$86 


already  been  said.  It  has  been  suggested  above  that  state  con- 
stitutions now  contain  a good  many  provisions  either  specifically 
granting  power  to  the  legislature  or  requiring  that  the  legisla- 
ture take  certain  action.  A command  to  the  legislature  and  an 
authorization  for  legislative  action  have  the  same  legal  effect, 
because  of  the  fact  that  there  is  no  way  of  compelling  affirmative 
legislative  action.  Commands  to  the  legislature  and  grants  to 
the  legislature  have  both  in  many  cases  found  their  way  into  the 
constitutions  for  the  purpose  of  enlarging  legislative  power,  al- 
though it  should  again  be  emphasized  that  when  they  are  once 
placed  in  the  constitution  they  almost  certainly  come  by  interpre- 
tation to  be  also  limitations  upon  that  power. 

A state  constitution  is  largely  an  accumulation  of  provisions 
which  have  been  introduced  at  various  times.  Constitutional 
limitations  once  adopted  tend  to  persist  and  are  joined  by  other 
provisions  to  meet  new  situations.  A provision  is  not  apt  to  be 
removed  unless  it  occasions  difficulties  which  seem  to  make  such  re- 
moval necessary.  The  provisions  of  Sections  29,  30  and  31 
of  Article  IV  of  the  constitution  of  1870  have  already  been  re- 
ferred to  as  either  commands  or  grants  of  power  to  the  legislature. 
Section  32  of  the  same  article  belongs  in  this  class.  There  are 
detailed  provisions  in  the  constitution  of  Illinois  with  respect  to 
railroads  (Article  XI.,  Sections  9 to  15)  and  with  respect  to  ware- 
houses (Article  XIII).  These  constitutional  provisions  are  in 
reality  legislation,  although  they  also  contain  expressions  as  to 
what  the  General  Assembly  shall  do.  On  the  whole  these  provisions 
have  been  outgrown,  and  are  useless,  although  they  have  as  yet 
made  little  difficulty.  The  case  of  Hannah  v.  People,8  suggests 
the  possibility,  however,  that  these  legislative  provisions  in  the 
constitution  may  at  some  time  come  to  be  hindrances  to  a more 
progressive  legislative  policy  than  was  actually  thought  necessary 
in  1870.  The  constitutional  provisions  introduced  in  1870  as  to 
railroads  and  warehouses  have  long  ceased  to  be  necessary,  be- 
cause the  matters  recognized  as  needed  in  1870  have  for  a number 
of  years  come  to  be  generally  recognized  as  constitutionally  proper,  ir- 
respective of  constitutional  provisions,  and  much  further  develop- 
ments have  taken  place. 

The  issue  presents  itself  to  the  constitutional  convention  of 
1920  as  to  the  type  of  constitution  it  shall  frame.  There  are  two 
alternatives  in  this  respect : 

(1)  The  state  may  continue  in  the  path  of  providing  a de- 
tailed constitution  which  shall  itself  prescribe  a good  deal  in  the 
way  of  state  legislative  policy,  or 

(2)  The  state  may  return  to  a brief  constitution  containing 
only  matters  of  fundamental  importance,  seeking  at  the  same  time 
to  lay  down  principles  in  such  a way  that  they  will  not  be  construed 
as  unduly  restricting  legislative  power. 

If  the  first  plan  is  adopted  of  having  a detailed  constitution, 
itself  embodying  a good  deal  with  respect  to  legislative  policy, 


8 198  111.  77  (1902JJ. 


586 


attention  should  be  called  to  the  necessity  of  a simple  amending 
process.  Placing  a mass  of  legislative  detail  into  the  constitution 
substantially  does  away  with  the  distinction  in  content  between  the 
constitution  and  statutes,  and  makes  necessary  to  a large  extent 
the  doing  away  at  the  same  time  with  the  distinction  in  method  of 
enactment  of  the  two  types  of  provisions.  If  a complex  and  de- 
tailed constitution  is  to  be  framed,  some  attention  should  also  be 
paid  to  the  effort  to  prevent  the  drawing  of  limitations  by  impli- 
cation from  provisions  which  are  not  intended  primarily  as  limita- 
tions. The  Illinois  constitution  of  1870  contains  such  a provision 
with  respect  to  revenue  by  prescribing  that  “the  specification  of 
the  objects  and  subjects  of  taxation  shall  not  deprive  the  General 
Assembly  of  the  power  to  require  other  subjects  or  objects  to  be 
taxed  in  such  manner  as  may  be  consistent  with  the  principles  of 
taxation  fixed  by  this  constitution.”  9 A provision  in  the  Okla- 
homa constitution  which  seeks  to  avoid  the  drawing  of  implied  limita- 
tions from  provisions  not  intended  as  limitations  declares  that 
“the  authority  of  the  legislature  shall  extend  to  all  rightful  sub- 
jects of  legislation,  and  any  specific  grant  of  authority  in  this 
constitution  upon  any  subject  whatsoever  shall  not  work  a re- 
striction, limitation  or  exclusion  of  such  authority  upon  the  same 
or  a'ny  other  subject  or  subjects  whatsoever.” 

The  thing  sought  to  be  emphasized  in  this  discussion  of  legis- 
lative powers  is  that  state  constitutions  have  come  to  a very  great 
extent  to  perform  functions  not  accounted  for  by  the  theory  still 
prevalent  as  to  the  function  of  state  constitutions  or  as  to  the 
powers  of  state  legislative  bodies.  If  details  are  to  be  placed  in 
state  constitutions  which  are  not  intended  primarily  as  limitations 
upon  the  legislature,  this  fact  should  be  taken  into  account  and  the 
constitution  so  phrased  that  the  courts  will  not  draw  limitations 
from  such  provisions  by  implication.  What  may  be  termed  implied 
limitations  came  into  the  judicial  history  of  this  country  with  the 
development  of  complex  constitutions,  and  the  principle  of  implied 
limitations  is  well  established  in  the  judicial  decisions  of  this  and 
other  states.  If  a complex  and  detailed  constitution  is  desired, 
and  it  is  desired  at  the  same  time  to  place  in  it  provisions  which 
are  not  intended  as  limitations,  some  language  must  be  employed 
to  rebut  the  present  judicial  presumption  that  such  provisions  are 
to  be  construed  as  limitations.  It  should  be  borne  in  mind  that 
it  is  impossible  to  frame  a detailed  and  complex  constitution  and 
at  the  same  time  adhere  to  the  theory  that  a state  constitution  is 
a document  containing  matters  only  of  fundamental  and  permanent 
importance,  and  that  the  legislature  possesses  all  powers  not 
clearly  and  intentionally  denied  by  the  text  of  such  a constitution. 
With  a complex  constitution  it  is  necessary  to  make  some  adjust- 
ments in  the  theory  as  to  the  amount  of  power  conferred  upon  the 
legislature  and  also  with  respect  to  the  method  of  constitutional 
change. 


9 See  Price  v People.  193  111.  114  (1901). 


587 


If  on  the  other  hand,  a simple  constitution  is  to  be  adopted 
containing  matters  only  of  fundamental  importance,  or  matters 
which  are  today  regarded  as  of  fundamental  importance,  it  may 
be  possible  to  return  to  the  older  legal  theory  that  a constitution 
is  to  be  construed  favorably  to  state  legislative  power  and  that  a 
state  legislature  has  all  powers  not  clearly  denied.  But  the  mere 
framing  of  a simple  constitution  may  not  accomplish  this  pur- 
pose if  broad  provisions  in  such  a constitution  continue  to  be  con- 
strued so  as  to  prevent  legislation  which  the  people  of  the  state 
may  desire. 


588 


X.  ANALYSIS  OF  PRESENT  LEGISLATIVE  ORGANI- 
ZATION AND  WORK. 


A state  legislature  is  essentially  the  affirmative  organ  of  the  state 
government  for  the  development  of  new  policies,  or  for  the  estab- 
lishment of  new  principles.  The  executive  has  little  or  no  authority 
to  establish  new  policies,  and  the  courts  have  less  power  to  do  so.  The 
legislature,  as  the  organ  of  the  state  government  for  affirmative  action, 
should  of  course  be  so  organized  that  it  may  operate  effectively  for 
this  purpose. 

During  certain  periods  in  the  development  of  English  law,  legis- 
lative action  was  perhaps  the  most  decisive  influence  in  the  develop- 
ment of  the  principles  of  private  law.  However,  on  the  whole,  the 
English  legal  system  has  in  its  main  lines  developed  as  a result  of 
judicial  action,  and  the  legislature  has  normally  limited  itself  to  the 
meeting  of  new  problems  which  could  not  be  satisfactorily  handled 
by  the  courts,  or  to  the  problem  of  restating  in  statutory  form  the 
results  of  judicial  action.  Occasionally  important  acts,  such  as  the 
negotiable  instruments  act,  the  uniform  sales  act,  and  the  uniform 
partnership  act,  are  enacted  by  the  General  Assembly  summing  up  and 
seeking  to  codify  the  existing  law,  with  such  changes  as  may  seem 
desirable.  Such  an  effort  at  legislative  restatement  of  the  whole  law 
upon  a particular  subject  is  not  frequent;  and  within  the  field  of  pri- 
vate law  a session  of  the  Illinois  General  Assembly  ordinarily  deals 
with  only  a small  number  of  problems  in  which  some  specific  diffi- 
culty may  have  presented  itself. 

The  work  of  the  Illinois  General  Assembly  may,  therefore,  be  said 
not  to  relate  primarily  to  the  development  of  rules  for  the  regulation 
of  relations  between  private  individuals.  Sir  Courtney  Ilbert  re- 
marked some  time  ago  of  the  English  Parliament  that  not  one-tenth 
of  the  work  of  a session  related  to  matters  of  private  rights,  and  that 
the  remainder  related  to  matters  primarily  administrative  in  character. 
The  same  statement  may  be  made  regarding  the  work  of  the  Illinois 
General  Assembly.  The  great  mass  of  its  work  relates  to  matters 
other  than  those  which  have  to  do  with  the  relations  between  private 
individuals.  Of  course,  the  appropriations  for  the  support  of  the 
state  government  and  legislation  regarding  the  administrative  func- 
tions of  the  state  and  of  the  local  subdivisions  of  the  state  are  equally 
as  important  to  the  citizen  as  is  legislation  regulating  the  private  rights 
of  one  citizen  as  against  another.  However,  legislation  which  is  pri- 
marily administrative  in  character  involves  problems  of  a distinctly 
different  sort  from  that  with  respect  to  matters  of  private  right. 


589 


An  analysis  of  the  legislative  work  of  the  General  Assembly  of 
Illinois  in  1917  and  1919  indicates  that  of  the  338  laws  enacted  by  the 
General  Assembly  at  its  regular  session  in  1917,  only  seventeen  can 
be  classed  as  regulating  primarily  the  private  rights  of  parties  among 
themselves.  Of  the  429  laws  enacted  at  the  regular  session  of  the 
Illinois  General  Assembly  in  1919  only  fourteen  belong  to  this  class. 
A table  is  given  below  indicating  in  a rough  fashion  the  types  of  mat- 
ters dealt  with  by  legislation  in  Illinois  at  these  two  sessions : 

1917  1919 


State  appropriations  63  67 

Laws  relating  to  state  administrative  matters 150  177 

Laws  relating  to  local  administrative  matters 108  171 

Laws  relating  to  purely  private  rights 17  14 


Acts  containing  new  substantive  matter  of  legislation  and  merely 
containing  appropriations  incident  thereto  are  not  classified  as  ap- 
propriation acts.  It  is  difficult  to  make  a distinction  between  state 
and  local  administrative  matters,  and  doubts  have  been  resolved  in 
favor  of  classification  as  local  matters.  The  numerous  acts  readjust- 
ing local  tax  rates  in  1919  are  responsible  for  the  large  proportion  of 
laws  for  that  year  classified  as  relating  to  local  administrative  matters. 

This  table  probably  indicates  with  sufficient  clearness  that  the 
problems  of  legislation  are  primarily  problems  connected  with  the 
operation  of  state  and  local  governments,  and  not  problems  having  to 
do  primarily  with  the  rights  of  private  individuals  among  themselves. 
In  the  case  of  state  appropriations  and  of  substantially  all  legislation 
regarding  state  administration,  the  information  upon  which  legislation 
is  to  be  based  must  be  obtained  primarily  from  the  existing  executive 
governmental  agencies  of  the  state,  and  with  a better  organization  of 
the  executive  government  the  information  for  such  legislation  will  be 
much  more  easily  available  than  at  the  present  time. 

For  matters  relating  to  local  administration,  information  again 
must  to  a great  extent  come  from  the  state  executive  offices  which  have 
a general  supervision  over  the  different  functions  of  local  government. 
For  example,  with  respect  to  schools  and  with  respect  to  local  chari- 
table administration,  a good  deal  of  the  impulse  for  legislation  may 
come  from  the  local  communities,  but  this  centers  largely  upon  the 
state  executive  offices  having  supervision  over  these  matters.  Comment 
is  made  later  in  this  discussion  upon  the  fact  that  there  is  no  constitu- 
tionally recognized  relationship  between  the  General  Assembly  and  the 
executive  department  with  respect  to  the  enactment  of  legislation,  al- 
though perhaps  fully  nine-tenths  of  the  work  of  the  General  Assembly 
at  each  of  its  sessions  must  be  devoted  to  legislation  or  proposed  leg- 
islation having  to  do  with  the  administration  of  government. 

The  chief  problems  of  legislation  coming  before  the  General  As- 
sembly are  problems  of  a technical  character,  requiring  information  re- 
garding the  actual  operation  of  government  and  regarding  the  opera- 
tion of  similar  institutions  elsewhere.  Legislation  is  a technical  expert 
task  and  in  the  states  of  this  country  it  is  performed  by  a body,  the 
length  of  whose  session  is  in  most  cases  narrowly  limited.  In  Illinois 
where  there  is  no.  constitutional  limit,  the  General  Assembly  meets  for 


590 


five  or  six  months  in  each  two  years,  and  the  members  during  that  five 
or  six  months’  period  return  home  ordinarily  at  the  end  of  each  week. 

The  executive  veto  operates  as  a purely  negative  check,  and  even 
as  a negative  check  is  exercised  in  the  main  in  such  a manner  that  de- 
fects in  proposed  legislation  detected  by  the  governor  cannot  be  cor- 
rected by  the  General  Assembly.  As  has  already  been  suggested,  sub- 
stantially all  bills  come  to  the  governor  at  the  end  of  the  session,  and 
his  action  upon  these  bills  is  reported  to  the  legislative  bodies  which 
have  met  merely  in  a formal  manner  and  ordinarily  without  a quorum. 

The  whole  development  in  the  states  of  this  country  has  been  that 
of  throwing  limitations  around  the  performance  of  legislative  function, 
and  of  reducing  the  periods  within  which  the  legislature  may  act.  At- 
tention has  already  been  called  to  the  fact  that  annual  sessions  of  leg- 
islatures have  almost  ceased  in  this  country  and  also  to  the  fact  that 
legislative  sessions  are  in  most  states  limited  to  a fairly  brief  period. 
No  limitations  upon  the  legislative  session  exist  in  Illinois,  and  nor- 
mally the  General  Assembly  sits  from  January  until  close  to  the  first  of 
July,  taking  a recess  a sufficient  time  before  that  date  for  the  governor 
to  act  upon  bills,  and  for  laws  to  come  into  effect  on  the  first  of  July,  as 
now  required  by  the  constitution.  Legislative  bodies  have  not  only  been 
restricted  in  the  frequency  and  length  of  their  sessions,  but  their  power 
has  also  been  limited  in  this  and  other  states  by  the  development  of  the 
executive  veto.  The  function  of  legislation  is  the  affirmative  task  of 
laying  down  new  policies,  and  the  executive  veto  has  come  to  be  pri- 
marily a negative  check. 

Detailed  limitations  as  to  its  procedure  and  as  to  the  things  which 
it  may  do  have  been  placed  around  the  legislature  in  such  a manner 
that  pitfalls  exist  in  substantially  every  direction.  Even  the  most  care- 
fully drafted  legislation  may  have  overlooked  some  one  of  the  pitfalls 
which  has  been  planned  by  the  constitution,  and  even  if  such  pitfalls 
have  all  been  carefully  avoided  there  is  great  danger  of  violating  some 
constitutional  provision  as  to  procedure  in  the  numerous  steps  of  its 
cumbersome  legislative  process  through  which  every  bill  must  pass  be- 
fore it  becomes  law.  Legislation  has  therefore  become  a hazardous  oc- 
cupation. 

Distrust  of  legislatures  developed  very  early  after  the  independ- 
ence of  this  country,  and  that  distrust  has  led  to  a hampering  of  the 
legislative  function  in  so  many  respects  that  effective  and  valid  legis- 
lation has  become  an  extremely  difficult  thing.  Little  has  been  done  as 
yet  in  this  country  toward  the  working  out  of  plans  by  which  the  Gen- 
eral Assembly  may  be  made  a responsible  legislative  body  for  the  af- 
firmative enactment  of  state  policies.  Substantially  all  of  the  develop- 
ment has  been  toward  limiting  and  restricting  the  General  Assembly’s 
power  for  evil,  upon  the  apparent  assumption  that  a legislative  body  is 
merely  a necessary  evil.  Naturally  little  has  been  accomplished  under 
this  theory  in  the  bettering  of  legislative  organization. 

The  legislative  body  under  the  constitution  of  Illinois  is  and  can  be 
in  no  sense  a body  of  lawmaking  experts.  Members  of  the  General 
Assembly  are  elected  from  all  walks  of  life  for  the  purpose  of  giving 
ordinarily  not  over  six  months  out  of  each  two  years  of  their  time  to 


591 


the  business  of  legislation.  They  may  well  represent  under  the  plans 
now  in  existence  the  sentiment  of  the  community  with  respect  to 
broad  matters  of  public  policy,  but  such  broad  matters  are  rather 
infrequent  as  compared  with  the  more  detailed  and  more  technical 
matters  which  must  be  dealt  with  by  legislation. 


XI.  CONCLUSIONS. 


The  principle  of  the  separation  of  powers  is  formally  embodied  in 
the  constitution  of  Illinois,  but  is  expressly  subject  to  all  of  the  excep- 
tions made  in  the  text  of  the  constitution  itself.  This  principle  was 
announced  in  the  constitution  of  1818,  but  the  constitution  of  that  year 
did  little  toward  establishing  the  principle  in  practice.  From  1818  to 
1848,  the  legislative  department  was  predominant  and  largely  con- 
trolled the  executive  and  judicial  departments.  Such  a predominance 
of  the  legislative  department  characterized  all  state  governments  after 
the  declaration  of  independence,  and  independent  spheres  of  executive 
and  judicial  departments  gradually  became  established  in  the  fifty  years 
following  1776.  The  increased  power  of  the  executive  and  judicial 
departments  has  come  about  primarily  through  the  vesting  in  these 
departments  of  power  at  first  regarded  as  legislative. 

In  a discussion  earlier  in  this  pamphlet  upon  the  relations  of  the 
General  Assembly  with  other  departments  of  the  state  government, 
attention  has  been  called  to  the  express  constitutional  provisions  bear- 
ing upon  relationships  with  other  departments.  A number  of  excep- 
tions have  already  been  made  to  the  principle  of  the  separation  of 
powers  and  perhaps  the  greatest  exception  to  this  principle  in  actual 
operation  is  that  as  to  the  relationship  between  the  governor  and  the 
two  houses  of  the  General  Assembly,  when  the  executive  and  legisla- 
tive branches  of  the  state  government  are  in  accord.  Much  the  greater 
part  of  legislative  business  bears  upon  the  operation  of  government 
and  it  is  essential  that  the  executive  and  the  legislative  departments 
should  work  in  close  harmony  upon  these  problems,  for  the  executive 
is  not  only  the  body  which  will  know  most  about  the  operation  of  exist- 
ing laws  (which  it  is  itself  administering)  but  it  is  also  the  body  which 
will  administer  or  supervise  the  administration  of  all  new  administra- 
tive legislation.  It  is  essential  that  the  General  Assembly  obtain  from 
the  executive  department  a large  mass  of  information  upon  which  new 
legislation  may  be  based,  and  when  the  governor  and  the  two  houses  of 
che  General  Assembly  are  in  accord  it  is  also  natural  that  the  governor 
as  the  head  of  the  executive  department  should  have  a large  influence 
with  the  legislative  department  in  the  final  determination  as  to  what 
legislation  shall  be  enacted.  Such  an  affirmative  relationship  between 
the  governor  and  the  General  Assembly  is  now  recognized  by  Article 
V,  Section  7 of  the  constitution.  The  governor  is  required  to  give  the 
General  Assembly  information  as  to  the  condition  of  the  state  and  to 
recommend  such  measures  as  he  shall  deem  expedient. 

The  theory  that  the  governor  and  the  legislature  must  be  abso- 
lutely distinct  and  must  operate  in  more  or  less  separate  and  water- 
tight compartments,  carefully  refraining  from  relationship  with  each 


other,  is  absolutely  unworkable;  and  such  a theory  has  never  been  A 
necessary  conclusion  from  the  principle  of  the  separation  of  powers; 
nor  has  it  ever  been  an  actuality  except  in  cases  where  through  dis- 
agreement between  the  two  departments,  the  state  government  was 
working  inefficiently. 

There  has  been  in  recent  years  a very  definite  tendency  to  recog- 
nize in  the  governor  a more  positive  share  in  the  actual  making  of 
legislation.  A vigorous  man  in  the  office  of  governor  always  exercises 
a large  influence  in  legislation,  and  the  state  is  better  off  for  such  ex- 
ercise. Bills  sponsored  by  the  governor  ordinally  obtain  precedence  in 
the  two  houses.  Not  only  this,  but  the  legislative  body  is  more  effective 
under  such  conditions  and  is  better  able  to  perform  the  functions  for 
which  it  has  been  established. 

The  veto  power,  it  has  already  been  suggested,  is  primarily  a 
negative  function  exercised  at  the  end  of  a legislative  session,  when 
any  suggestions  which  the  governor  may  have  for  the  improvement  of 
legislation  cannot  be  availed  of.  Constitutional  provisions  in  Alabama 
and  Virginia  and  a recent  constitutional  provision  in  Massachusetts 
regarding  the  governor’s  recommendations  upon  bills  presented  to  him 
after  passage  by  the  two  houses,  indicate  a step  in  the  direction  of  giv- 
ing the  governor  a larger  affirmative  share  in  legislation;  but  the  gov- 
ernor cannot  exercise  an  affirmative  share  in  legislation  by  passing 
upon  bills  submitted  to  him,  if  the  bills  come  to  him  at  the  end  of  the 
legislative  session,  so  that  he  has  merely  an  alternative  of  approving 
bill  or  of  vetoing  it,  without  there  being  a possibility  of  improving 
it  in  co-operation  with  the  General  Assembly.  The  budget  provisions 
in  Maryland  and  Massachusetts  also  reflect  a growing  tendency  to  in- 
crease the  affirmative  share  of  the  governor  in  legislation,  and  here  this 
affirmative  share  in  legislation  comes  through  the  recommendation  of  a 
detailed  budget.  In  Maryland  the  governor’s  budget  is  preserved 
through  a prohibition  of  legislative  increase  in  its  items  (a  prohibition 
similar  to  that  established  by  rules  in  the  British  House  of  Commons). 
In  Massachusetts  the  governor’s  control  is  established  by  permitting 
the  general  court  to  increase  items  in  the  budget,  but  by  granting  to 
the  governor  at  the  same  time  an  authority  to  reduce  items  or  .veto 
parts  of  items,  so  that  he  may,  if  the  general  court  has  increased  his 
recommendations  of  appropriations,  reduce  them  to  the  amounts  of  his 
original  recommendation. 

However,  little  has  on  the  whole  been  done  in  this  country  toward 
bringing  about  an  effective  co-operation  between  the  executive  depart- 
ment and  the  legislative  department  in  matters  of  legislation.  It  may 
be  desirable  to  repeat  here  that  the  need  for  a constitutional  recognition 
of  such  closer  relationship  depends  upon  two  things : 

(1)  The  fact  that  the  bulk  of  work  to  be  performed  by  a legisla- 
tive body  has  a direct  bearing  upon  the  work  being  done  by  the  execu- 
tive body. 

(2)  The  further  fact  that  the  legislative  body  now  is  and  is  likely 
to  remain  a body  not  in  constant  session,  but  meeting  only  for  several 
months  in  each  legislative  period.  A body  assembled  as  is  the  general 
assembly  of  Illinois  has  no  opportunity  when  once  it  has  come  -into 


594 


session  to  accumulate  all  of  the  data  necessary  for  effective  legislation. 
Such  accumulation  of  data  and  preparation  of  information  must  come 
in  advance  of  the  legislative  session.  The  general  assembly  meets  on 
an  average  of  about  three  days  each  week  for  some  six  months  during 
each  twenty-four  months,  and  the  members  in  general  find  it  necessary 
to  continue  their  private  businesses  to  some  extent  even  during  the 
sessions.  To  expect  from  a body  of  this  type,  no  matter  how  able, 
honest  and  hardworking  the  members  of  such  a body  may  be,  a high 
grade  performance  upon  a great  number  of  technical  measures  is  futile, 
unless  the  executive  as  the  permanent  organ  of  the  state  government 
has  some  machinery  for  bringing  these  matters  effectively  to  the  atten- 
tion of  the  legislative  body.  By  the  constitution  of  1870,  an  effort  was 
made  to  draw  the  courts  in  as  an  aid  to  legislation,  by  requiring  them 
to  report  defects  in  the  laws,  but  this  plan  has  not  worked. 

The  separation  of  the  legislative  and  executive  functions  is  now 
accentuated  by  the  provisions  in  Sections  3 and  15  of  Article  IV  of  the 
constitution,  preventing  any  person  elected  to  the  general  assembly 
from  receiving  any  civil  appointment  in  this  state  during  the  term  for 
which  he  shall  have  been  elected,  and  forbidding  any  person  holding  a 
lucrative  office  under  the  United  States  or  this  state  from  having  a seat 
in  the  general  assembly.  These  provisions  do  not  prevent  the  giving 
of  political  rewards  to  legislative  leaders.  If  the  party  in  control  of 
the  state  government  is  also  in  control  of  the  national  government, 
appointments  to  office  are  oftentimes  made  to  national  positions  of 
those  who  under  this  constitutional  provision  would  be  disqualified 
from  holding  state  positions.  These  constitutional  provisions  do  not 
as  a matter  of  fact  prevent  the  objectionable  practice  at  which  they 
were  aimed,  but  they  do  often  result  in  taking  persons  having  some 
information  about  state  government  out  of  the  service  of  state  govern- 
ment and  into  the  service  of  national  or  local  government. 

Attention  has  already  been  called  to  the  difficulties  in  the  opera- 
tion of  our  government  when  the  executive  belongs  to  a political  party 
which  does  not  at  the  same  time  control  the  two  houses  of  the  legis- 
lative department.  This  lack  of  political  harmony  between  the  execu- 
tive and  the  legislative  departments  has  been  quite  evident  in  the 
national  government  during  a good  part  of  the  time  since  the  civil 
war.  In  the  national  government  at  least  there  is  a tendency  for  the 
party  in  the  minority  in  a presidential  election  to  control  the  federal 
house  of  representatives  in  the  intervening  election  between  presi- 
dential years. 

In  the  Illinois  general  assembly  cases  of  purely  partisan  alignment 
upon  legislation  are  not  frequent.  Upon  the  bulk  of  important  legis- 
lation no  party  lines  are  drawn,  and  in  the  past  at  least  the  issue 
between  “wet”  and  “dry”  has  been  much  more  important  than  that 
between  democrat  and  republican.  However,  it  should  not  be  in- 
ferred from  this  statement  that  it  is  therefore  immaterial  as  to 
whether  the  governor  and  the  two  houses  of  the  general  assembly 
are  in  political  accord.  Although  party  alignments  are  infrequent, 
the  control  of  the  two  departments  of  the  government  by  diffierent 
parties  makes  a great  deal  of  confusion  and  friction.  Attention  may 


595 


also  be  called  to  the  fact  that,  for  political  reasons,  the  governor  has 
greater  influence  with  the  general  assembly  meeting  when  his  term 
begins  than  with  the  one  meeting  in  the  middle  of  his  term,  even 
though  in  both  cases  there  is  political-  accord  between  the  governor 
and  the  majorities  of  the  two  houses. 

The  English  parliamentary  system,  which  has  been  adopted  very 
widely  throughout  the  world  has  a distinct  advantage  in  that  it  keeps 
a constant  political  harmony-  between  the  legislative  and  the  executive 
departments.  Under  the  parliamentary  system  as  it  operates  in  Eng- 
land, and  in  most  of  the  countries  which  have  copied  from  England, 
the  executive  part  of  the  government  is  controlled  by  a cabinet  whose 
members  are  of  the  same  party  as  that  which  controls  the  more  popu- 
lar branch  of  the  legislature,  the  members  of  the  cabinet  resigning 
or  forcing  a new  popular  election  when  they  cease  to  be  in  harmony 
with  the  legislative  body.  In  this  manner  the  legislative  body  is 
always  able  to  force  a change  of  cabinets  or  at  least  an  appeal  to  the 
electorate  to  determine  whether  the  existing  cabinet  and  the  party  it 
represents  should  remain  in  power.  Either  by  the  resignation  of  the 
cabinet  or  by  its  success  or  failure  in  the  general  election,  political 
harmony  between  the  legislature  and  the  executive  is  restored  almost 
immediately  after  it  has  once  ceased  to  exist.  The  English  parlia- 
mentary system  almost  necessarily,  however,  requires  either  a single- 
chambered  legislature  or  a legislative  organization  in  which  one  house 
has  the  dominant  political  control. 

In  this  country  the  system  of  separate  executive  and  legislative 
organizations  works  best  when  the  executive  and  legislature  are  not 
only  in  political  harmony  but  when  the  personnel  of  the  two  depart- 
ments is  such  that  effective  co-operation  may  be  had.  When  there  is 
not  political  harmony,  or  when  there  is  not  full  co-operation,  even  if 
there  is  apparent  political  harmony,  the  governmental  organization  in 
this  country  works  badly  or  almost  not  at  all.  That  is,  the  theory 
(although  somewhat  modified  by  express  constitutional  provisions) 
implies  a rather  distinct  separation  of  departments ; but  the  system 
based  upon  this  theory  works  well  only  when  such  separation  is  in 
fact  largely  broken  down  and  when  a close  co-operation  is  established 
through  extra-constitutional  means. 

Assuming  political  harmony  to  exist  at  any  time  between  the  two 
departments  in  a given  state,  the  co-operation  of  the  two  departments 
is  of  course  rendered  more  effective  if  the  legislative  leaders  are  not 
changing  at  frequent  intervals.  Under  our  cumbersome  system  of 
legislative  organization,  it  normally  requires  several  sessions  for  a 
man  to  develop  a close  familiarity  with  the  details  of  governmental 
problems.  The  senate  in  this  state  is  so  organized  under  the 
constitution  that  substantially  one-half  of  the  members  are  elected 
each  two  years,  so  that  at  least  one-half  of  the  members  have  always 
had  previous  legislative  experience.  Of  course  it  is  also  true  that 
members  of  the  state  senate  are  often  re-elected  or  that  members  of  the 
house  are  elected  to  the  state  senate,  so  that  continuous  legislative  ser- 
vice in  the  senate  is  increased  in  this  way  beyond  that  required  by  the 
constitution.  In  the  session  of  1917,  of  the  twenty-five  newly  elected 


596 


members  of  the  senate,  five  had  seen  service  in  the  immediately  pre- 
ceding session  of  the  house  of  representatives,  and  nine  had  previously 
been  in  the  state  senate.  In  the  session  of  1919,  of  the  twenty-six 
newly  elected  members  of  the  senate,  nineteen  had  had  legislative 
service  immediately  preceding  their  election. 

No  constitutional  provision  requires  continuity  of  service  in  the 
house  of  representatives,  although  by  election  a fair  degree  of  con- 
tinuity is  maintained.  In  the  Fiftieth  General  Assemblly  (1917),  of 
the  153  members,  90  had  served  in  the  next  preceding  session  either 
of  the  senate  or  of  the  house  of  representatives.  In  1919,  of  the  153 
members  of  the  house  of  representatives,  97  had  served  in  the  next 
preceding  session  either  of  the  senate  or  of  the  house  of  representa- 
tives. 

A member  by  frequent  re-elections  to  the  house  or  senate  acquires 
a degree  of  expertness  in  legislative  matters,  and  some  continuity  of 
membership  through  re-election  is  almost  necessary  to  the  working  of 
the  present  cumbersome  machinery  of  legislation.  A house  of  repre- 
sentatives composed  entirely  of  persons  without  previous  legislative 
experience  would  be  almost  helpless,  however  high  the  ability  of  its 
members  may  be. 

Anyone  who  has  had  to  deal  with  the  legislative  organization  of 
Illinois  or  of  any  other  state  must  be  impressed  by  the  cumbersome- 
ness of  the  present  legislative  machinery.  Skill  and  persistence  are 
required  to  take  a piece  of  proposed  legislation  through  all  stages  in 
each  house  and  finally  through  the  process  of  executive  approval. 
No  plans  have  been  worked  out  by  the  constitution  or  through  legis- 
lative procedure  for  the  careful  co-ordination  of  the  work  of  the  two 
houses.  The  citizen  without  legislative  experience  ordinarily  finds 
himself  lost  when  he  comes  for  the  first  time  in  contact  with  this 
highly  cumbersome  procedure.  The  theory  upon  which  this  pro- 
cedure and  the  limitations  upon  the  legislature  have  been  built  up 
is  apparently  that  the  legislature  must  be  practically  prevented  from 
doing  anything  in  order  that  it  may  be  prevented  from  doing 
wrong  things,  and  such  a plan  is  practically  certain  to  lead  to 
undesirable  consequences. 

The  process  of  legislation  has  two  distinct  aspects:  (1)  The 

expert,  (2)  The  popular.  Any  legislative  organization  should  be  of 
such  a character  as  to  reflect  upon  matters  of  legislation  the  needs 
and  the  views  of  the  people  of  the  state.  It  must  also  be  borne  in 
mind,  however,  that  the  technical  aspect  of  legislation  is  no  less  im- 
portant, and  that  a large  part  of  business  to  be  acted  upon  by  a legis- 
lature has  to  do  with  matters  upon  which  the  public  may  have  very 
little  opinion  either  way.  Even  upon  matters  with  respect  to  which 
the  public  has  positive  views,  the  technical  element  is  important  and 
care  upon  the  technical  side  of  legislation  is  essential  if  the  people  are 
finally  through  legislation  to  get  what  they  desire.  This  balancing 
of  the  technical  and  the  popular  aspects  of  legislation  presents  the 
most  serious  problem  with  respect  to  the  matter  now  under  considera- 
tion, and  the  problem  is  one  which  has  not  been  dealt  with  to  any 
extent  as  yet  in  this  country.  From  the  standpoint  of  the  expression 


597 


of  popular  opinion  and  the  accumulation  of  popular  views  there  is 
of  course  a distinct  value  in  having  a large  popular  body  meet  occa- 
sionally as  is  now  the  case  with  the  Illinois  General  Assembly.  Small 
bodies  of  technical  experts  holding  office  permanently  or  for  long 
terms  are  not  likely  to  be  proper  representatives  of  the  popular  views 
and  the  popular  needs. 

The  functions  to  be  accomplished  by  a legislative  organization 
are:  (1)  Satisfactory  positive  action  in  accord  with  the  views  of 

the  people  of  the  state,  and  (2)  technical  correctness  in  the  legis- 
lation enacted  in  accord  with  popular  views  and,  also  in  the  enact- 
ment of  the  numerous  measures  needed  for  the  proper  conduct 
of  administrative  matters  with  respect  to  which  the  public  at  large 
will  normally  have  no  decided  opinion  one  way  or  the  other. 

This  combination  of  the  temporary  popular  element  in  legis- 
lation with  the  permanent  technical  element  in  legislation  may 
be  worked  out  in  several  different  ways : 

(a)  The  permanent  skilled  element  may  be  organized  in  the 
executive,  which  has  necessarily  a permanent,  continuous  organi- 
zation, leaving  the  legislature  with  an  organization  more  or  less 
like  that  now  in  existence  for  the  expression  of  the  popuar  view 
upon  matters  presented  by  the  executive,  and  also  for  the  enact- 
ment into  legislation  of  matters  demanded  by  public  sentiment 
but  not  proposed  by  the  executive. 

(b)  There  might  be  a permanent  technical  legislature  such 
as  that  suggested  in  a quotation  earlier  in  this  pamphlet  from  a 
message  to  the  Kansas  legislature  by  Governor  Hodges.  Clearly, 
however,  a small  permanent  body  composed  of  technical  experts 
would  not  be  adequate  as  a means. of  reflecting  the  popular  needs 
and  desires  in  legislation,  and  if  there  were  a small  and  permanent 
technical  body  such  as  Governor  Hodges  suggested,  much  of  the 
work  of  such  a body  would  have  to  be  submitted  either  to  a larger 
and  more  representative  legislative  body  or  to  a referendum  of 
the  people. 

(c)  It  may  be  possible  to  establish  a permanent  expert  staff 
subject  to  the  general  assembly  or  to  a combination  of  executive 
and  legislative  control,  this  permanent  expert  staff  drawing  up  the 
measures  suggested  by  the  administrative  bodies  of  the  state  and 
local  government  or  by  members  of  the  legislature  and  submitting 
these  measures  to  the  legislature  meeting  very  much  as  at  present. 
The  legislative  reference  bureau  is  an  approach  to  what  is  here 
suggested,  although  the  chief  function  of  the  legislative  reference 
bureau  has  been  that  of  drafting  bills  desired  by  members  of  the 
General  Assembly,  after  they  have  come  into  session  ; and  there 
has  not  as  yet  been  any  effective  way  of  preparing  in  advance  of 
the  legislative  session  the  matters  which  it  may  be  desired  to  sub- 
mit to  the  General  Assembly. 


593 


XII.  MORE  DETAILED  PROBLEMS  IN  ILLINOIS. 


When  once  a legislative  organization  has  been  established, 
and  has  become  a part  of  the  governmental  organization  of  the 
state  the  possibility  of  changing  it  in  any  radical  way  is  not  very 
great,  although  there  should  be  some  possibility  of  making  adjust- 
ments as  to  some  of  the  problems  which  make  greatest  difficulty 
in  Illinois  today. 

The  more  detailed  problems,  however,  bearing  upon  the  opera- 
tion of  the  present  legislative  machinery  are  much  more  apt  to 
receive  favorable  consideration,  and  a brief  review  should  be  made 
of  these  problems,  and  also  of  the  possible  problems  which  may 
present  themselves  if  the  initiative  and  referendum  are  adopted 
as  instruments  of  legislation  in  this  state. 


Cumulative  voting  system.  The  cumulative  voting  system  is 
one  which  has  for  some  time  been  under  attack  in  this  state  and 
probably  a good  deal  of  time  in  the  constitutional  convention  will 
have  to  be  devoted  to  this  problem.  As  has  been  suggested  earlier 
in  this  pamphlet,  the  alternatives  to  the  plan  of  cumulative  voting 
are  a return  to  the  majority  system  or  an  advance  beyond  cumu- 
lative voting  to  a more  proportional  system  of  representation. 
However,  it  is  likely  that  in  the  movement  for  the  abolition  of 
cumulative  voting,  the  chief  effort  will  be  made  to  return  to  a 
plan  of  majority  voting.  As  has  already  been  suggested, 
if  the  state  returns  to  majority  voting,  there  is  a dis- 
tinct advantage  in  retaining  the  plan  of  having  but  one  series 
of  legislative  districts,  using  the  senatorial  district  as  a basis  for 
electing  representatives,  as  at  present.  If  a complete  new  series 
of  districts  is  to  be  created  for  the  election  of  members  of  the  house 
of  representatives,  care  should  at  least  be  taken  to  see  that  such 
districts  do  not  cross  the  lines  of  the  larger  senatorial  districts. 


Limitation  of  representation.  The  problem  of  limiting  the 

representation  of  Chicago  and  Cook  County  will  present  itself, 
and  with  this  problem  will  also  be  presented  the  question  of  a 
greater  degree  of  municipal  home  rule  not  only  for  Chicago  but 
for  other  cities  in  the  state  as  well.  The  subject  of  limited  repre- 
sentation has  already  been  fully  discussed  elsewhere  in  this 


599 


pamphlet,  and  in  this  summing  up  of  the  matter  attention  should 
be  again  called  to  the  fact  that  some  modification  will  necessarily 
be  made  in  the  cumulative  system  if  Chicago  or  Cook  County  is 
to  be  represented  in  one  house  upon  a different  basis  from  that  in 
the  other  house.  The  cumulative  system  could  still  be  applied 
under  such  an  arrangement,  but  the  application  of  the  cumulative 
or  any  other  system  will  require  two  more  or  less  independent 
series  of  legislative  districts  if  the  representation  of  a large  area 
of  the  state  is  to  be  upon  a different  basis  in  the  two  houses. 


Initiative  and  Referendum.  Bulletin  No.  2 in  this  series  dis- 
cusses fully  the  initiative  and  referendum  and  analyzes  in  detail 
the  constitutional  provisions  of  the  states  which  have  adopted 
these  institutions.  It  is  unnecessary  to  repeat  that  matter  here, 
but  attention  should  be  called  to  the  fact  that  the  adoption  of  the 
initiative  and  referendum  will  set  up  a new  and  additional  type  of 
legislative  machinery.  Of  course,  if  the  indirect  initiative  is 
adopted,  the  machinery  of  popular  legislation  will  be  closely  re- 
lated to  the  present  representative  organization ; and  if  the  refer- 
endum is  adopted  merely  as  a means  of  repealing,  rather  than  of 
suspending,  laws,  the  problems  of  relationship  between  the  two 
types  of  legislative  machinery  will  be  much  simplified.  The  initia- 
tive and  referendum  have  not  to  any  large  extent  replaced  the 
representative  legislative  machinery  even  in  the  states  where  they 
have  been  used  most  frequently,  but  there  are  tendencies  in  some 
of  the  constitutional  provisions  in  other  states  toward  forcing  an 
increased  use  of  the  initiative  and  referendum,  through  placing 
limitations  upon  the  amendment  or  repeal  by  the  regular  repre- 
sentative legislative  body  of  acts  adopted  or  approved  by  popular 
vote.  If  the  initiative  and  referendum  are  adopted,  care  must  be 
taken  to  see  that  proper  relationships  are  established  between  the 
two  methods  then -existing  for  the  enactment  of  legislation. 


Relation  of  legislative  power  to  the  constitution.  In  Bulletin 
No.  3 of  this  series  a full  discussion  will  be  found  of  the  relation- 
ship of  legislative  action  to  the  amendment  of  the  constitution. 
It  is  there  said  that  a constitutional  convention  is  a cumbersome 
piece  of  governmental  machinery,  properly  to  be  used  only  at  long 
intervals  and  in  case  material  changes  in  a constitution  are  de- 
sired. The  machinery  for  legislative  proposal  of  amendment  (to 
which  may  be  added  an  initiative  proposal  if  the  initiative  is 
adopted)  should  be  employed  when  less  fundamental  changes 
are  desired.  The  process  of  specific  amendment  has  been  so  cum- 
bersome in  Illinois  under  the  constitution  of  1870  that  it  has  not 
served  its  proper  purpose  as  a means  of  making  less  fundamental 
and  less  material  changes.  The  proposal  of  specific  amendments 


600 


is  much  simpler  and  cheaper  than  is  the  assembling  of  a conven- 
tion, and  even  though  a constitution  is  limited  to  things  now  re- 
garded as  fundamental  and  permanent,  it  is  likely  that  the  views  of 
the  present  day  as  to  these  matters  may  change  before  a new  con- 
stitution is  framed  for  this  state,  so  that  a relatively  simple  amend- 
ing process  will  be  necessary  even  though  the  constitution  may 
be  now  regarded  as  framed  in  such  a manner  that  it  will  need  in- 
frequent change. 

The  most  important  problem  as  to  the  relationship  between  the  leg- 
islature and  the  constitution  is  that  of  legislative  powers.  A detailed 
and  complex  constitution  will  of  course  limit  the  powers  of  the  general 
assembly  to  a very  great  extent,  and  will  probably  require  frequent  al- 
teration. A simple  constitution  which  seeks  to  deal  merely  with  funda- 
mentals will  leave  the  general  assembly  a wider  power  and  will  require 
less  frequent  amendment.  Of  course,  as  has  already  been  suggested,  a 
simple  type  of  constitution  containing  only  fundamentals  but  contain- 
ing also  broad  constitutional  guarantees,  which  have  already  been 
strictly  construed,  may  prevent  the  enactment  of  legislation  which  is 
desired.  A further  discussion  of  the  whole  problem  of  the  construction 
of  broad  constitutional  guarantees  will  be  found  in  the  pamphlet  on  the 
judicial  department.  It  seems  desirable  to  return  if  possible  to  a simple 
constitution  and  to  a simpler  legislative  machinery,  less  hedged  about 
by  all  sorts  of  limitations.  It  also  seems  desirable  to  bring,  if  possible, 
a closer  relationship  between  the  executive  and  the  legislative  depart- 
ments in  legislation,  and  through  such  a closer  co-ordination  to  make 
more  effective  the  permanent  and  technical  aspects  of  legislation.  If 
these  matters  are  properly  handled,  there  seems  no  necessity  for  adher- 
ing to  the  method  how  employed  in  the  states  of  this  country  of  hedging 
about  legislative  bodies,  and  of  making  the  actual  enactment  of  legis- 
lation a hazardous  task. 


Amendment  by  reference.  Consideration  has  already  been 
given  to  the  problem  of  amendment  by  reference  in  this  state.  A more 
detailed  discussion  of  this  matter  will  be  found  in  the  pamphlet  en- 
titled “Constitutional  Conventions  in  Illinois”  and  a detailed  statement 
of  the  results  of  cases  will  be  found  in  the  Annotated  Constitution.  The 
present  situation  in  this  state  with  respect  to  amendment  of  prior  laws 
by  reference  is  one  which  increases  very  materially  the  hazards  of  legis- 
lation, without  any  real  gain,  and  some  change  should  be  made  in  this 
respect. 


Other  procedural  problems.  A discussion  appears  earlier  in 
this  pamphlet  of  the  problem  of  three  readings  of  each  bill  at  large 
in  the  house,  and  of  the  problem  presented  by  the  constitutional  provi- 
sion as  to  time  when  laws  shall  take  effect.  Perhaps  it  may  be  desirable 
also  that  the  convention  devote  some  attention  to  the  matter  of  printing 
bills  with  all  amendments  thereto  before  final  passage.  The  require- 


601 


ment  as  to  printing  is  one  with  respect  to  which  the  supreme  court  took 
a very  strict  view,  but  this  view  has  been  somewhat  modified  and  the 
difficulty  which  arose  with  respect  to  the  holding  of  legislation  uncon- 
stitutional because  of  failure  to  make  journal  entries  of  printing  has 
now  largely  been  met  by  making  of  formal  entries  upon  the  journals 
with  respect  to  this  matter  in  all  cases. 


602 


APPENDIX  NO.  1.  REFERENCES. 


Reinsch,  P.  S.  American  legislatures  and  legislative  methods.  New 
York,  1907. 

Dodds,  H.  W.  Procedure  in  state  legislatures.  Supplement  to  Annals 
of  the  American  Academy  of  Political  and  Social  Science.  Phila- 
delphia, 1918. 

Moore,  B.  F.  History  of  cumulative  voting  and  minority  representa- 
tion in  Illinois,  1870-1919.  2d  Edition.  University  of  Illinois  Stud- 
ies in  the  Social  Sciences,  1919. 

Debel,  N.  H.  The  veto  power  of  the  governor  of  Illinois.  University 
of  Illinois  Studies  in  the  Social  Sciences.  Vol.  VI,  Nos.  1,  2.  1917. 

Barnett,  J.  D.  The  bicameral  system  in  state  legislation.  American 
Political  Science  Review,  IX,  449  (August,  1915). 

Garner,  J.  W.  Legislative  organization  and  representation.  Proceed- 
ings of  the  Illinois  State  Bar  Association.  1917.  Pages  376-392. 

Colvin,  D.  L.  The  bicameral  principle  in  the  New  York  legislature. 
Columbia  University.  New  York,  1913. 

Temperley,  H.  V.  Senates  and  upper  chambers.  London. 

Hoag,  C.  G.  Effective  voting.  63d  congress,  2d  session,  Senate  Doc. 
359  (1914). 

Humphreys,  J.  H.  Proportional  representation,  London.  1911. 

Massachusetts  Constitutional  Convention,  1917. 

Bulletin  No.  9.  Biennial  elections  and  legislative  sessions. 
Preferential  voting. 

Proportional  representation. 

The  basis  of  the  apportionment  of  representation 
in  the  several  states. 

Special  legislation. 


Bulletin  No. 
Bulletin  No. 


27. 

28. 


Bulletin  No.  29. 


Bulletin  No.  31 


603 


APPENDIX  NO.  2.  CONSTITUTION  OF  ILLINOIS, 
ARTICLE  IV. 


LEGISLATIVE  DEPARTMENT. 

Section  1.  The  legislative  power  shall  be  vested  in  a General 
Assembly,  which  shall  consist  of  a Senate  and  House  of  Representa- 
tives, both  to  be  elected  by  the  people. 

ELECTION. 

§ 2.  An  election  for  members  of  the  General  Assembly  shall  be 
held  on  the  Tuesday  next  after  the  first  Monday  in  November,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  seventy,  and  every 
two  years  thereafter,  in  each  county,  at  such  places  therein  as  may  be 
provided  by  law.  When  vacancies  occur  in  either  house,  the  Governor, 
or  person  exercising  the  powers  of  Governor,  shall  issue  writs  of  elec- 
tion to  fill  such  vacancies. 

ELIGIBILITY  AND  OATH. 

§ 3.  No  person  shall  be  a Senator  who  shall  not  have  attained  the 
age  of  twenty-five  years,  or  a Representative  who  shall  not  have  at- 
tained the  age  of  twenty-one  years.  No  person  shall  be  a Senator  or  a 
Representative  who  shall  not  be  a citizen  of  the  United  States,  and  who 
shall  not  have  been  for  five  years  a resident  of  this  State,  and  for  two 
years  next  preceding  his  election  a resident  within  the  territory  form- 
ing the  district  from  which  he  is  elected.  No  judge  or  clerk  of  any 
court,  Secretary  of  State,  Attorney  General,  State’s  Attorney,  recorder, 
sheriff,  or  collector  of  public  revenue,  member  of  either  House  of  Con- 
gress, or  person  holding  any  lucrative  office  under  the  United  States  or 
this  State,  or  any  foreign  government,  shall  have  a seat  in  the  General 
Assembly : Provided,  that  appointments  in  the  militia,  and  the  offices 
of  notary  public  and  justice  of  the  peace,  shall  not  be  considered  lucra- 
tive. Nor  shall  any  person  holding  any  office  of  honor  or  profit  under 
any  foreign  government,  or  under  the  government  of  the  United  States, 
(except  postmasters  whose  annual  compensation  does  not  exceed  the 
sum  of  three  hundred  dollars)  hold  any  office  of  honor  or  profit  under 
the  authority  of  this  State. 

§ 4.  No  person  who  has  been,  or  hereafter  shall  be,  convicted  of 
bribery,  perjury  or  other  infamous  crime,  nor  any  person  who  has  been 
or  may  be  a collector  or  holder  of  public  moneys,  who  shall  not  have  ac- 
counted for  and  paid  over,  according  to  law,  all  such  moneys  due  from 
him,  shall  be  eligible  to  the  General  Assembly,  or  to  any  office  of  profit 
or  trust  in  this  State. 

§ 5.  Members  of  the  General  Assembly,  before  they  enter  upon 
their  official  duties,  shall  take  and  subscribe  the  following  oath  or  af- 


604 


formation : “I  do  solemnly  swear  (or  affirm)  that  I will  support  the 

Constitution  of  the  United  States  and  the  Constitution  of  the  State  of 
Illinois,  and  will  faithfully  discharge  the  duties  of  Senator  (or  Repre- 
sentative) according  to  the  best  of  my  ability;  and  that  I have  not, 
knowingly  or  intentionally,  paid  or  contributed  anything,  or  made  any 
promise  in  the  nature  of  a bribe,  to  directly  or  indirectly  influence  any 
vote  at  the  election  at  which  I was  chosen  to  fill  the  said  office,  and  have 
not  accepted,  nor  will  I accept  or  receive,  directly  or  indirectly,  any 
money  or  other  valuable  thing,  from  any  corporation,  company  or  per- 
son, for  any  vote  or  influence  I may  give  or  withhold  on  any  bill,  reso- 
lution or  appropriation,  or  for  any  other  official  act.”  This  oath  shall 
be  administered  by  a judge  of  the  supreme  or  circuit  court  in  the  hall  of 
the  house  to  which  the  member  is  elected,  and  the  Secretary  of  State 
shall  record  and  file  the  oath  subscribed  by  each  member.  Any  mem- 
ber who  shall  refuse  to  take  the  oath  herein  prescribed  shall  forfeit  his' 
office,  and  every  member  who  shall  be  convicted  of  having  sworn  falsely 
to  or  of  violating  his  said  oath,  shall  forfeit  his  office  and  be  disquali- 
fied thereafter  from  holding  any  office  of  profit  or  trust  in  this  State. 

APPORTIONMENT SENATORIAL. 

§ 6.  The  General  Assembly  shall  apportion  the  State  every  ten 
years,  beginning  with  the  year  one  thousand  eight  hundred  and  seventy- 
one,  by  dividing  the  population  of  the  State,  as  ascertained  by  the  Fed- 
eral census,  by  the  number  fifty-one,  and  the  quotient  shall  be  the 
ratio  of  representation  in  the  senate.  The  State  shall  be  divided 
into  fifty-one  senatorial  districts,  each  of  which  shall  elect  one  sena- 
tor, whose  term  of  office  shall  be  four  years.  The  Senators  elected  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy-two, 
in  districts  bearing  odd  numbers,  shall  vacate  their  offices  at  the  end 
of  two  years,  and  those  elected  in  districts  bearing  even  numbers,  at 
the  end  of  four  years ; and  vacancies  occurring  by  the  expiration  of 
term  shall  be  filled  by  the  election  of  senators  for  the  full  term.  Sena- 
torial districts  shall  be  formed  of  contiguous  and  compact  territory, 
bounded  by  county  lines,  and  contain  as  nearly  as  practicable  an  equal 
number  of  inhabitants ; but  no  district  shall  contain  less  than  four- 
fifths  of  the  senatorial  ratio.  Counties  containing  not  less  than  the 
ratio  and  three-fourths,  may  be  divided  into  separate  districts,  and 
shall  be  entitled  to  two  Senators,  and  to  one  additional  senator  for 
each  number  of  inhabitants  equal  to  the  ratio,  contained  by  such  coun- 
ties in  excess  of  twice  the  number  of  said  ratio. 

MINORITY  REPRESENTATION. 

§ 7 and  8.  The  House  of  Representatives  shall  consist  of  three 
times  the  number  of  the  members  of  the  Senate,  and  the  term  of  office 
shall  be  two  years.  Three  representatives  shall  be  elected  in  each 
Senatorial  district  at  the  general  election  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  seventy-two,  and  every  two  years  there- 
after. In  all  elections  of  representatives  aforesaid,  each  qualified 
voter  may  cast  as  many  votes  for  one  candidate  as  there  are  repre- 
sentatives to  be  elected,  or  may  distribute  the  same,  or  equal  parts 


605 


thereof,  among  the  candidates,  as  he  shall  see  fit ; and  the  candidates 
highest  in  votes  shall  be  declared  elected.2 


TIME  OF  MEETING  AND  GENERAL  RULES. 

§ 9.  The  sessions  of  the  General  Assembly  shall  commence  at 
twelve  o’clock  noon,  on  the  Wednesday  next  after  the  first  Monday 
in  January,  in  the  year  next  ensuing  the  election  of  members  thereof, 
and  at  no  other  time,  unless  as  provided  by  this  Constitution.  A 
majority  of  the  members  elected  to  each  house  shall  constitute  a 
quorum.  Each  house  shall  determine  the  rules  of  its  proceedings,  and 
be  the  judge  of  the  election,  returns  and  qualifications  of  its  mem- 
bers ; shall  choose  its  own  officers ; and  the  Senate  shall  choose  a tem- 
porary President  to  preside  when  the  Lieutenant  Governor  shall  not 
attend  as  President  or  shall  act  as  governor.  The  Secretary  of  State 
shall  call  the  House  of  Representatives  to  order  at  the  opening  of  each 
new  Assembly,  and  preside  over  it  until  a temporary  presiding  officer 
thereof  shall  have  been  chosen  and  shall  have  taken  his  seat.  No 
member  shall  be  expelled  by  either  house,  except  by  a vote  of  two- 
thirds  of  all  the  members  elected  to  that  house,  and  no  member  be 
twice  expelled  for  the  same  offense.  Each  house  may  punish  by  im- 
prisonment any  person  not  a member,  who  shall  be  guilty  of  disrespect 
to  the  house  by  disorderly  or  contemptuous  behavior  in  its  presence. 
But  no  such  imprisonment  shall  extend  beyond  twenty-four  hours  at 
one  time,  unless  the  person  shall  persist  in  such  disorderly  or  con- 
temptuous behavior. 

§ 10.  The  doors  of  each  house  and  of  committees  of  the  whole 
shall  be  kept  open,  except  in  such  cases  as,  in  the  opinion  of  the  house 
require  secrecy.  Neither  house  shall,  without  the  consent  of  the  other, 
adjourn  for  more  than  two  days  or  to  any  other  place  than  that  in 
which  the  two  houses  shall  be  sitting.  Each  house  shall  keep  a journal 


2 Under  the  terms  of  section  12'  of  the  schedule,  original  sections  7 and  8 
of  this  article  were  to  be  eliminated  if  the  section  relating  to  minority  repre- 
sentation, which  was  submitted  to  a separate  vote,  was  adopted  by  the  voters. 
The  separate  section  was  adopted  and  accordingly  replaced  original  sections 
7 and  8,  which  were  as  follows: 

Section  7.  The  population  of  the  State,  as  ascertained  by  the  Federal  cen- 
sus, shall  be  divided  by  the  number  one  hundred  and  fifty-three,  and  the  quotient 
shall  be  the  ratio  of  representation  in  the  House  of  Representatives.  Every 
county  or  district  shall  be  entitled  to  one  representative,  when  its  population  is 
three-fifths  of  the  ratio;  if  any  county  has  less  than  three-fifths  of  the  ratio,  it 
shall  be  attached  to  the  adjoining  county  having  the  least  population,  to  which 
no  other  county  has  for  the  same  reason  been  attached,  and  the  two  shall  con- 
stitute a separate  district.  Every  county  or  district  having  a population  not 
less  than  the  ratio  and  three-fifths,  shall  be  entitled  to  two  representatives,  and 
for  each  additional  number  of  inhabitants,  equal  to  the  ratio,  one  representative. 
Counties  having  over  two  hundred  thousand  inhabitants  may  be  divided  into  dis- 
tricts, each  entitled  to  not  less  than  three  nor  more  than  five  representatives. 
After  the  year  one  thousand  eight  hundred  and  eighty,  the  whole  popu- 
lation shall  be  divided  by  the  number  one  hundred  and  fifty-nine,  and  the  quo- 
tient shall  be  the  ratio  of  representation  in  the  House  of  Representatives  for  the 
ensuing  ten  years,  and  six  additional  representatives  shall  be  added  for  every 
five  hundred  thousand  increase  of  population  at  each  decennial  census  thereafter, 
and  be  apportioned  in  the  same  manner  as  above  provided. 

Section  8.  When  a county  or  district  shall  have  a fraction  of  population 
above  what  shall  entitle  it  to  one  representative,  or  more,  according  to  the  pro- 
visions of  the  foregoing  section,  amounting  to  one-fifth  of  the  ratio,  it  shall 
be  entitled  to  one  additional  representative  in  the  fifth  term  of  each  decennial 
period;  when  such  fraction  is  two-fifths  of  the  ratio,  it  shall  be  entitled  to  an 
additional  representative  in  the  fourth  and  fifth  terms  of  said  periods;  when  the 
fraction  is  three-fifths  of  the  ratio,  it  shall  be  entitled  to  an  additional  repre- 
sentative in  the  first,  second  and  third  terms,  respectively;  when  the  fraction  is 
four-fifths  of  the  ratio,  it  shall  be  entitled  to  an  additional  representative  in  the 
first,  .second,  third  and  fourth  terms,  respectively. 


606 


of  its  proceedings,  which  shall  be  published.  In  the  Senate  at  the 
request  of  two  members,  and  in  the  House  at  the  request  of  five  mem- 
bers, the  yeas  and  nays  shall  be  taken  on  any  question,  and  entered 
upon  the  journal.  Any  two  members  of  either  house  shall  have  liberty 
to  dissent  from  and  protest,  in  respectful  language,  against  any  act  or 
resolution  which  they  think  injurious  to  the  public  or  to  any  individual, 
and  have  the  reasons  of  their  dissent  entered  upon  the  journals. 

STYLE  OF  LAWS  AND  PASSAGE  OF  BILLS. 

§ 11.  The  style  of  the  laws  of  this  State  shall  be:  “Be  it  enacted 
by  the  People  of  the  State  of  Illinois , represented  in  the  General  As- 
sembly 

§ 12.  Bills  may  originate  in  either  house,  but  may  be  altered, 
amended  or  rejected  by  the  other;  and  on  the  final  passage  of  all  bills, 
the  vote  shall  be  by  yeas  and  nays,  upon  each  bill  separately,  and  shall 
be  entered  upon  the  journal,  and  no  bill  shall  become  a law  without 
the  concurrence  of  a majority  of  the  members  elected  to  each  house. 

§ 13.  Every  bill  shall  be  read  at  large  on  three  different  days,  in 
each  house ; and  the  bill  and  all  amendments  thereto  shall  be  printed 
before  the  vote  is  taken  on  its  final  passage;  and  every  bill,  having 
passed  both  houses,  shall  be  signed  by  the  Speakers  thereof.  No  act 
hereafter  passed  shall  embrace  more  than  one  subject,  and  that  shall 
be  expressed  in  the  title.  But  if  any  subject  shall  be  embraced  in  an 
act  which  shall  not  be  expressed  in  the  title,  such  act  shall  be  void  only 
as  to  so  much  thereof  as  shall  not  be  so  expressed ; and  no  law  shall  be 
revived  or  amended  by  reference  to  its  title  only,  but  the  law  revived, 
or  the  section  amended  shall  be  inserted  at  length  in  the  new  act.  And 
no  act  of  the  General  Assembly  shall  take  effect  until  the  first  day  of 
July  next  after  its  passage,  unless,  in  case  of  emergency,  (which  emer- 
gency shall  be  expressed  in  the  preamble  or  body  of  the  act),  the  Gen- 
eral Assembly  shall,  by  a vote  of  two-thirds  of  all  the  members  elected 
to  each  house,  otherwise  direct. 

PRIVILEGES  AND  DISABILITIES. 

§ 14.  Senators  and  representatives  shall,  in  all  cases,  except  trea- 
son, felony  or  breach  of  the  peace,  be  privileged  from  arrest  during  the 
session  of  the  General  Assembly,  and  in  going  to  and  returning  from 
the  same;  and  for  any  speech  or  debate  in  either  house,  they  shall  not 
be  questioned  in  any  other  place. 

§ 15.  No  person  elected  to  the  General  Assembly  shall  receive  any 
civil  appointment  within  this  State  from  the  Governor,  the  Governor 
and  Senate,  or  from  the  General  Assembly,  during  the  term  for  which 
he  shall  have  been  elected ; and  all  such  appointments  and  all  votes 
given  for  any  such  members  for  any  such  office  or  appointment,  shall 
be  void ; nor  shall  any  member  of  the  General  Assembly  be  interested, 
either  directly  or  indirectly,  in  any  contract  with  the  State,  or  any 
county  thereof,  authorized  by  any  law  passed  during  the  term  for 
which  he  shall  have  been  elected,  or  within  one  year  after  the  expira- 
tion thereof. 

[See  article  iv,  section  2j.\ 


607 


PUBLIC  MONEYS  AND  APPROPRIATIONS. 

§ 16.  The  General  Assembly  shall  make  no  appropriation  of  money 
out  of  the  treasury  in  any  private  law.  Bills  making  appropriations 
for  the  pay  of  members  and  officers  of  the  General  Assembly,  and  for 
the  salaries  of  the  officers  of  the  government,  shall  contain  no  pro- 
vision on  any  other  subject. 

§ 17.  No  money  shall  be  drawn  from  the  treasury  except  in  pur- 
suance of  an  appropriation  made  by  law,  and  on  the  presentation  of  a 
warrant  issued  by  the  Auditor  thereon ; and  no  money  shall  be  diverted 
from  any  appropriation  made  for  any  purpose,  or  taken  from  any  fund 
whatever,  either  by  joint  or  separate  resolution.  The  Auditor  shall, 
within  sixty  days  after  the  adjournment  of  each  session  of  the  Gen-! 
eral  Assembly,  prepare  and  publish  a full  statement  of  all  money  ex- 
pended at  such  session,  specifying  the  amount  of  each  item,  and  to 
whom  and  for  what  paid. 

§ 18.  Each  General  Assembly  shall  provide  for  all  the  appro- 
riations  necessary  for  the  ordinary  and  contingent  expenses  of  the  gov- 
ernment until  the  expiration  of  the  first  fiscal  quarter  after  the  ad- 
journment of  the  next  regular  session,  the  aggregate  amount  of  which 
shall  not  be  increased  without  a vote  of  two-thirds  of  the  members 
elected  to  each  house,  nor  exceed  the  amount  of  revenue  authorized  by 
law  to  be  raised  in  such  time ; and  all  appropriations,  general  or  special, 
requiring  money  to  be  paid  out  of  the  State  treasury,  from  funds  be- 
longing to  the  State,  shall  end  with  such  fiscal  quarter : Provided,  the 
State  may,  to  meet  casual  deficits  or  failures  in  revenues,  contract 
debts,  never  to  exceed  in  the  aggregate  two  hundred  and  fifty  thousand 
dollars ; and  moneys  thus  borrowed  shall  be  applied  to  the  purpose  for 
which  they  were  obtained,  or  to  pay  the  debt  thus  created,  and  to  no 
other  purpose;  and  no  other  debt,  except  for  the  purpose  of  repelling 
invasion,  suppressing  insurrection,  or  defending  the  State  in  war,  (for 
payment  of  which  the  faith  of  the  State  shall  be  pledged)  shall  he  con- 
tracted, unless  the  law  authorizing  the  same  shall,  at  a general  election, 
have  been  submitted  to  the  people,  and  have  received  a majority  of  the 
votes  cast  for  members  of  the  General  Assembly  at  such  election.  The 
General  Assemblv  shall  provide  for  the  publication  of  said  law  for  three 
months,  at  least,  before  the  vote  of  the  people  shall  be  taken  upon  the 
same ; and  provision  shall  be  made,  at  the  time,  for  the  payment  of  the 
interest  annually,  as  it  shall  accrue,  by  a tax  levied  for  the  purpose,  or 
from  other  sources  of  revenue ; which  law,  providing  for  the  payment 
of  such  interest  by  such  tax,  shall  be  irrepealable  until  such  debt  be 
paid;  And,  provided,  further,  that  the  law  levying  the  tax  shall  be  sub- 
mitted to  the  people  with  the  law  authorizing  the  debt  to  be  contracted. 

§ 19.  The  General  Assembly  shall  never  grant  or  authorize 
extra  compensation,  fee  or  allowance  to  any  public  officer,  agent, 
servant  or  contractor,  after  service  has  been  rendered  or  a con- 
tract made,  nor  authorize  the  payment  of  any  claim,  or  part  thereof, 
hereafter  created  against  the  State  under  any  agreement  or  contract 
made  without  express  authority  of  law;  and  all  such  unauthorized 
agreements  or  contracts  shall  be  null  and  void : Provided,  the 


608 


General  Assembly  may  make  appropriations  for  expenditures  in- 
curred in  suppressing  insurrection  or  repelling  invasion. 

§ 20.  The  State  shall  never  pay,  assume  or  become  responsible 
for  the  debts  or  liabilities  of,  or  in  any  manner  give,  loan  or  extend 
its  credit  to,  or  in  aid  of  any  public  or  other  corporation,  association 
or  individual. 

PAY  OF  MEMBERS. 

§ 21.  The  members  of  the  General  Assembly  shall  receive  for 
their  services  the  sum  of  five  dollars  per  day,  during  the  first  ses- 
sion held  under  this  Constitution,  and  ten  cents  for  each  mile 
necessarily  traveled  in  going  to  and  returning  from  the  seat  of 
government,  to  be  computed  by  the  Auditor  of  Public  Accounts ; 
and  thereafter  such  compensation  as  shall  be  prescribed  by  law, 
and  no  other  allowance  or  emolument,  directly  or  indirectly,  for 
any  purpose  whatever ; except  the  sum  of  fifty  dollars  per  session 
to  each  member,  which  shall  be  in  full  for  postage,  stationery, 
newspapers,  and  all  other  incidental  expenses  and  perquisites ; but 
no  change  shall  be  made  in  the  compensation  of  members  of  the 
General  Assembly  during  the  term  for  which  they  may  have  been 
elected.  The  pay  and  mileage  allowed  to  each  member  of  the 
General  Assembly  shall  be  certified  by  the  Speakers  of  their  respec- 
tive houses,  and  entered  on  the  journals,  and  published  at  the  close 
of  each  session. 

SPECIAL  LEGISLATION  PROHIBITED. 

§ 22.  The  General  Assembly  shall  not  pass  local  or  special 
laws  in  any  of  the  following  enumerated  cases,  that  is  to  say : 
For — 

Granting  divorces ; 

Changing  the  names  of  persons  or  places ; 

Laying  out,  opening,  altering  and  working  roads  or  highways ; 

Vacating  roads,  town  plats,  streets,  alleys  and  public  grounds; 

Locating  or  changing  county  seats ; 

Regulating  county  and  township  affairs ; 

Regulating  the  practice  in  courts  of  justice; 

Regulating  the  jurisdiction  and  duties  of  justices  of  the  peace, 
police  magistrates,  and  constables ; 

Providing  for  changes  of  venue  in  civil  and  criminal  cases ; 

Incorporating  cities,  towns,  or  villages,  or  changing  or  amend- 
ing the  charter  of  any  town,  city  or  village; 

Providing  for  the  election  of  members  of  the  board  of  super- 
visors in  townships,  incorporated  towns  or  cities ; 

Summoning  and  impaneling  grand  or  petit  juries ; 

Providing  for  the  management  of  common  schools ; 

Regulating  the  rate  of  interest  on  money ; 

The  opening  and  conducting  of  any  election,  or  designating 
the  place  of  voting; 

The  sale  or  mortgage  of  real  estate  belonging  to  minors  or 
others  under  disability; 

The  protection  of  game  or  fish ; 

Chartering  or  licensing  ferries  or  toll  bridges; 


609 


Remitting  fines,  penalties  or  forfeitures ; 

Creating,  increasing,  or  decreasing  fees,  percentage  or  allow- 
ances of  public  officers,  during  the  term  for  which  said  officers  are 
elected  or  appointed ; 

Changing  the  law  of  descent ; 

Granting  to  any  corporation,  association  or  individual  the  right 
to  lay  down  railroad  tracks,  or  amending  existing  charters  for  such 
purpose ; 

Granting  to  any  corporation,  association  or  individual  any 
special  or  exclusive  privilege,  immunity  or  franchise  whatever. 

In  all  other  cases  where  a general  law  can  be  made  applicable, 
no  special  law  shall  be  enacted. 

§ 23.  The  General  Assembly  shall  have  no  power  to  release 
or  extinguish,  in  whole  or  in  part,  the  indebtedness,  liability,  or 
obligation  of  any  corporation  or  individual  to  this  State  or  to  any 
municipal  corporation  therein. 

IMPEACHMENT. 

§ 24.  The  House  of  Representatives  shall  have  the  sole  power 
of  impeachment;  but  a majority  of  all  the  members  elected  must  con- 
cur  therein.  All  impeachments  shall  be  tried  by  the  Senate : and  when 
sitting  for  that  purpose,  the  Senators  shall  be  upon  oath,  or  affirmation 
co  do  justice  according  to  law  and  evidence.  When  the  Governor  of 
the  State  is  tried,  the  Chief  Justice  shall  preside.  No  person  shall  be 
convicted  without  the  concurrence  of  two-thirds  of  the  Senators 
elected.  But  judgment,  in  such  cases,  shall  not  extend  further  than  re- 
moval from  office,  and  disqualification  to  hold  any  office  of  honor, 
profit  or  trust  under  the  government  of  this  State.  The  party,  whether 
convicted  or  acquitted,  shall,  nevertheless,  be  liable  to  prosecution, 
crial,  judgment  and  punishment  according  to  law. 

MISCELLANEOUS. 

§ 25.  The  General  Assembly  shall  provide,  by  law,  that  the  fuel 
stationery,  and  printing  paper  furnished  for  the  use  of  the  State;  the 
copying,  printing,  binding  and  distributing  the  laws  and  journals,  and 
all  other  printing  ordered  by  the  General  Assembly  shall  be  let  by  con- 
tract to  the  lowest  responsible  bidder ; but  the  General  Assembly  shall 
fix  a maximum  price;  and  no  member  thereof,  or  other  officer  of  the 
State,  shall  be  interested,  directly  or  indirectly,  in  such  contract.  But 
all  such  contracts  shall  be  subject  to  the  approval  of  the  Governor,  and 
if  he  disapproves  the  same  there  shall  be  a re-letting  of  the  contract,  in 
such  manner  as  shall  be  prescribed  by  law. 

§ 26.  The  State  of  Illinois  shall  never  be  made  defendant  in  any 
court  of  law  or  equity. 

§ 27.  The  General  Assembly  shall  have  no  power  to  authorize 
lotteries  or  gift  enterprise  for  any  purpose,  and  shall  pass  laws  to 
prohibit  the  sale  of  lottery  or  gift  enterprise  tickets  in  this  State. 

§ 28.  No  law  shall  be  passed  which  shall  operate  to  extend  the 
term  of  any  public  officer  after  his  election  or  appointment. 

§ 29.  It  shall  be  the  duty  of  the  General  Assembly  to  pass  such 
laws  as  may  be  necessary  for  the  protection  of  operative  miners,  by 


610 


providing  for  ventilation,  when  the  same  may  be  required,  and  the  con- 
struction of  escapement  shafts,  or  such  other  appliances  as  may  secure 
safety  in  all  coal  mines,  and  to  provide  for  the  enforcement  of  said 
lawb  by  such  penalties  and  punishments  as  may  be  deemed  proper. 

§ 30.  The  General  Assembly  may  provide  for  establishing  and 
opening  roads  and  cartways,  connected  with  a public  road,  for  private 
and  public  use. 

§ 31.  The  General  Assembly  may  pass  laws  permitting  the  owners 
of  lands  to  construct  drains,  ditches  and  levees  for  Agricultural,  Sani- 
tary or  mining  purposes,  across  the  lands  of  others,  and  provide  for  the 
organization  of  drainage  districts,  and  vest  the  corporate  authorities 
thereof,  with  power  to  construct  and  maintain  levees,  drains  and 
ditches,  and  to  keep  in  repair  all  drains,  ditches  and  levees  heretofore 
constructed  under  the  laws  of  this  State,  by  Special  Assessments  upon 
the  property  benefited  thereby.3 

§ 32.  The  General  Assembly  shall  pass  liberal  Homestead  and  Ex- 
emption laws. 

§ 33.  The  General  Assembly  shall  not  appropriate  out  of  the  State 
treasury,  or  expend  on  account  of  the  new  capitol  grounds,  and  con- 
struction, completion,  and  furnishing  of  the  State  House,  a sum  ex- 
ceeding, in  the  aggregate,  three  and  a half  millions  of  dollars,  inclusive 
of  all  appropriations  heretofore  made,  without  first  submitting  the 
proposition  for  an  additional  expenditure  to  the  legal  voters  of  the 
State,  at  a general  election;  nor  unless  a majority  of  all  the  votes  cast 
at  such  election  shall  be  for  the  proposed  additional  expenditure. 

§ 34.  The  General  Assembly  shall  have  power,  subject  to  the  con- 
ditions and  limitations  hereinafter  contained,  to  pass  any  law  (local, 
special  or  general)  providing  a scheme  or  charter  of  local  municipal 
government  for  the  territory  now  or  hereafter  embraced  within  the 
limits  of  the  city  of  Chicago.  The  law  or  laws  so  passed  may  provide 
for  consolidating  (in  whole  or  in  part)  in  the  municipal  government  of 
the  city  of  Chicago,  the  powers  now  vested  in  the  city,  board  of  educa- 
tion, township,  park  and  other  local  governments  and  authorities  hav- 
ing jurisdiction  confined  to  or  within  said  territory,  or  any  part  thereof, 
and  for  the  assumption  by  the  city  of  Chicago  of  the  debts  and  li- 
abilities (in  whole  or  in  part)  of  the  governments  or  corporate  authori- 
ties whose  functions  within  its  territory  shall  be  vested  in  said  city  of 
Chicago,  and  may  authorize  said  city,  in  the  event  of  its  becoming 
liable  for  the  indebtedness  of  two  or  more  of  the  existing  municipal 
corporations  lying  wholly  within  said  city  of  Chicago,  to  become  in- 
debted to  an  amount  (including  its  existing  indebtedness  and  the  in- 
debtedness of  all  municipal  corporations  lying  wholly  within  the  limits 
of  said  city,  and  said  city’s  proportionate  share  of  the  indebtedness  of 
said  county  and  sanitary  district  which  share  shall  be  determined  in 
such  a manner  as  the  General  Assembly  shall  prescribe)  in  the  aggre- 

3 As  amended  by  the  first  amendment  to  the  constitution.  The  amendment 
was  proposed  by  resolution  of  the  General  Assembly  in  1877.  It  was  ratified  by 
the  voters  on  November  5,  1878,  and  proclaimed  adopted  on  November  29,  1878. 
The  section  as  it  originally  appeared  is  as  follows: 

“Section  31.  The  General  Assembly  may  pass  laws  permitting  the  owners 
or  occupants  of  lands  to  construct  drains  and  ditches,  for  agricultural  and  sani- 
tary purposes,  across  the  lands  of  others." 


611 


gate  not  exceeding  five  per  centum  of  the  full  value  of  the  taxable 
property  within  its  limits,  as  ascertained  by  the  last  assessment  either 
for  State  or  municipal  purposes  previous  to  the  incurring  of  such  in- 
debtedness (but  no  new  bonded  indebtedness,  other  than  for  refunding 
purposes,  shall  be  incurred  until  the  proposition  therefor  shall  be  con- 
sented to  by  a majority  of  the  legal  voters  of  said  city  voting  on  the 
question  at  any  election,  general,  municipal  or  special)  ; and  may  pro- 
vide for  the  assessment  of  property  and  the  levy  and  collection  of  taxes 
within  said  city  for  corporate  purposes  in  accordance  with  the  prin- 
ciples of  equality  and  uniformity  prescribed  by  this  Constitution;  and 
may  abolish  all  offices,  the  functions  of  which  shall  be  otherwise  pro- 
vided for;  and  may  provide  for  the  annexation  of  territory  to  or  dis- 
connection of  territory  from  said  city  of  Chicago  by  the  consent  of  a 
majority  of  the  legal  voters  (voting  on  the  question  at  any  election, 
general,  municipal  or  special)  of  the  said  city  and  of  a majority  of  the 
voters  of  such  territory,  voting  on  the  question  at  any  election,  general, 
municipal  or  special;  and  in  case  the  General  Assembly  shall  create 
municipal  courts  in  the  city  of  Chicago  it  may  abolish  the  offices  of 
justices  of  the  peace,  police  magistrates  and  constables  in  and  for  the 
territory  within  said  city,  and  may  limit  the  jurisdiction  of  justices  of 
the  peace  in  the  territory  of  said  county  of  Cook  outside  of  said  city 
to  that  territory,  and  in  such  case  the  jurisdiction  and  practice  of  said 
municipal  courts  shall  be  such  as  the  General  Assembly  shall  prescribe ; 
and  the  General  Assembly  may  pass  all  laws  which  it  may  deem 
requisite  to  effectually  provide  a complete  system  of  local  municipal 
government  in  and  for  the  city  of  Chicago. 

No  law  based  upon  this  amendment  to  the  Constitution,  affecting 
the  municipal  government  of  the  city  of  Chicago,  shall  take  effect  until 
such  law  shall  be  consented  to  by  a majority  of  the  legal  voters  of  said 
city  voting  on  the  question  at  any  election,  general,  municipal  or  spe- 
cial ; and  no  local  or  special  law  based  upon  this  amendment  affecting 
specially  any  part  of  the  city  of  Chicago  shall  take  effect  until  con- 
sented to  by  a majority  of  the  legal  voters  of  such  part  of  said  city 
voting  on  the  question  at  any  election,  general,  municipal  or  special. 
Nothing  in  this  section  contained  shall  be  construed  to  repeal,  amend 
or  affect  section  four  (4)  of  Article  XI  of  the  Constitution  of  this 
State.4 


4 Section  34  was  added  by  the  sixth  amendment  to  the  constitution.  The 
amendment  was  proposed  by  a resolution  of  the  General  Assembly  in  1903.  It 
was  ratified  by  the  voters  on  November  8,  1904.  and  proclaimed  adopted  on 
December  5,  1904. 


CONSTITUTIONAL  CONVENTION 


BULLETIN  No.  9 

The  Executive  Department 


Compiled  and  Published  by  the 

LEGISLATIVE  REFERENCE  BUREAU 

Springfield,  Illinois 


[Printed  by  authority  of  the  State  of  Illinois.] 


LEGISLATIVE  REFERENCE  BUREAU. 


Governor  Frank  O.  Lowden,  Chairman. 
Senator  Edward  C.  Curtis,  Grant  Park. 
Senator  Richard  J.  Barr,  Joliet. 
Representative  Edward  J.  Smejkal,  Chicago. 
Representative  William  P.  Holaday,  Danville. 


E.  J.  Verlie,  Secretary. 

W.  F.  Dodd,  in  charge  collection  of  data  for 
constitutional  convention. 


TABLE  OF  CONTENTS. 


PAGE. 

I.  Summary  621 

II.  Development  of  the  executive  department 623 

Constitutional  development  623 

Statutory  development 624 

Consolidation 625 

Civil  service 626 

Increase  in  appropriations 628 

Summary  628 

III.  Description  of  the  constitutional  and  statutory 

FUNCTIONS  OF  CONSTITUTIONAL  STATE  OFFICERS 630 

Constitution  of  1870 630 

Constitutions  of  1818  and  1848 631 

Statutes  632 

The  Governor 632 

Constitution  of  1870 632 

Constitutions  of  1818  and  1848 634 

Statutory  powers  and  duties 635 

Lieutenant  governor  637 

Secretary  of  state 638 

Auditor  of  public  accounts 640 

Treasurer  642 

Superintendent  of  public  instruction 645 

Attorney  general  646 

IV.  Description  of  the  functions  of  departments  under 

THE  CIVIL  ADMINISTRATIVE  CODE 650 

General  650 

Department  of  finance  652 

Department  of  agriculture  653 

Department  of  labor  655 

Department  of  mines  and  minerals 656 

Department  of  public  works  and  buildings 657 

Department  of  public  welfare 659 

Department  of  public  health 660 

Department  of  trade  and  commerce 662 

Department  of  registration  and  education 664 


CONI  ENTS— Continued. 


PAGE 

Description  of  the  functions  of  boards,  commissions, 

DEPARTMENTS  AND  OFFICES  NOT  CREATED  BY  THE  CONSTI- 
TUTION AND  NOT  UNDER  THE  CIVIL  ADMINISTRATIVE  CODE  667 

1.  Appointed  by  the  Governor 668 

Adjutant  general  668 

Commission  for  the  uniformity  of  legislation 668 

Penitentiary  commission  668 

2.  Appointed  by  the  Governor  with  the  advice  and 

consent  of  the  senate 669 

Civil  service  commission 669 

Court  of  claims 671 

Illinois  state  historical  library 672 

Lincoln  park  and  West  Chicago  commissioners. . . . 672 

3.  Ex-officio  672 

Board  for  vocational  education 672 

Board  of  commissioners  of  the  state  library 673 

Joint  legislative  reference  bureau 673 

Primary  canvassing  board  674 

State  canvassing  board 674 

Tax  levy  board 674 

4.  Partly  ex-officio  and  partly  appointed  by  the 

Governor 675 

Board  of  trustees  of  the  teachers  pension  and  re- 
tirement fund 675 

Board  of  voting  machine  commissioners 676 

Centennial  building  commissioners 676 

5.  Partly  ex-officio  and  partly  elective 676 

University  of  Illinois  trustees 676 

6.  Partly  ex-officio  and  partly  appointed  by  an  ex-officio 

board  678 

Illinois  library  extension  commission 678 

7.  Partly  ex-officio  and  partly  from  various  societies.  . 678 

Illinois  farmers’  institute 678 

8.  Partly  ex-officio  and  partly  appointed  by  a constitu- 
tional state  officer 679 

Teachers’  examining  board 679 

9.  Appointed  by  the  University  of  Illinois 680 

Board  of  examiners  in  accountancy 680 


CONTENTS— Continued. 

VI.  Analysis  of  the  functions  of  the  constitutional 

STATE  OFFICERS 681 

Governor 681 

Relation  to  the  General  Assembly 681 

Power  of  appointment 682 

Power  of  removal 683 

Control  of  other  officials 684 

Law  enforcement 684 

Pardoning  power 686 

Appointment  of  judges 687 

Summary 687 

Lieutenant  governor  687 

Secretary  of  state 688 

Auditor  of  public  accounts 689 

Treasurer  690 

Superintendent  of  public  instruction 691 

Attorney  general  693 

VII.  Lack  of  coordination  and  overlapping  of  functions.  . 696 

Finance  administration 696 

Educational  agencies 698 

Corporations 701 

Elections  702 

VIII.  Conclusions  703 

Problem  of  executive  reorganization 703 

Reorganization  in  other  states 703 

Short  ballot  704 

Civil  service  705 

Power  of  appointment  and  removal 705 

Enforcement  of  law  by  local  officials 708 

Problem  before  convention 708 

Appendix  No.  1.  References 709 

Appendix  No.  2.  Text  of  article  v,  constitution  of  Illinois  711 


I.  SUMMARY. 


This  bulletin  presents  a detailed  survey  of  the  present  executive 
organization  of  Illinois.  This  survey  divides  the  executive  organiza- 
tion into  three  groups:  (1)  The  constitutional  state  officers. . (2) 

The  departments  under  the  civil  administrative  code.  (3)  Offices, 
boards  and  commissions  which  are  neither  created  by  the  constitution 
nor  provided  for  by  the  civil  administrative  code.  Following  the 
detailed  statement  regarding  the  present  executive  organization,  will 
be  found  an  analysis  of  the  present  functions  and  duties  of  the  present 
constitutional  state  officers. 

The  constitutional  convention  will  have  to  do  pimarily  with  the 
state  executive  offices  now  provided  for  by  the  constitution,  but 
special  attention  should  be  called  to  the  fact  that  almost  none  of  the 
duties  of  these  offices  are  prescribed  by  the  constitution.  It  is  there- 
fore necessary  to  resort  to  the  statutes  in  order  to  describe  the  duties 
of  these  constitutional  officers.  These  duties  may,  by  statute,  be 
withdrawn  from  the  constitutional  officers  upon  whom  they  are  now 
imposed,  and  be  transferred  to  purely  statutory  officers. 

The  departments  under  the  Civil  Administrative  Code,  and  num- 
erous miscellaneous  offices  and  boards  owe  their  existence  entirely  to 
statutes.  The  parts  of  the  executive  department  which  are  based 
entirely  upon  statute  have  numerous  duties  which  overlap  and 
conflict  with  duties  imposed  by  statute  upon  the  constitutional  state 
officers.  This  overlapping  of  functions  as  between  the  constitutional 
and  the  statutory  officers  may  to  a great  extent  now  be  dealt  with 
and  remedied  by  statute,  although  any  thoroughgoing  reorganiza- 
tion of  functions  as  between  the  constitutional  and  the  statutory 
officers  is  interfered  with  because  of  the  difference  in  status  of  these 
two  types  of  officers.  As  a matter  of  fact  the  political  position  of 
the  constitutional  state  officers  makes  it  practically  impossible  to 
transfer  functions  from  these  officers  by  statute,  against  the  will  of 
the  persons  holding  such  offices.  The  constitutional  status  of  certain 
officers  which  are  popularly  elective  therefore  constitutes  a very 
definite  barrier  to  the  readjustment  of  functions,  unless  such  readjust- 
ment be  made  by  the  transfer  of  new  functions  to  the  constitutional 
officers. 

This  bulletin  is  devoted  primarily  to  a detailed  analysis  of  statu- 
tory provisions  regarding  the  executive  organization.  Such  an 
analysis  is  necessary  in  order  to  present  a full  view  of  the  present 
executive  organization.  It  is  not  assumed  that  the  constitutional 
convention  will  seek  to  place  in  the  constitution  detailed  provisions 
regarding  the  present  executive  organization.  The  executive  depart- 
ment is  one  whose  organization  must  expand  with  the  increase  in 
duties  to  be  performed  by  the  state.  During  the  past  fifty  years  an 
enormous  increase  has  taken  place  in  the  duties  performed  by  state 


622 


governments,  and  it  is  probable  that  this  increase  in  state  functions 
will  continue.  A detailed  executive  organization  such  as  that  proposed 
in  the  New  York  rejected  constitution  of  1915  or  such  as  that  author- 
ized by  a Massachusetts  constitutional  amendment  of  1917  is  likely 
to  make  great  trouble  in  the  future.  Here,  as  elsewhere  in  the  con- 
stitution, much  is  to  be  gained  by  omitting  details  from  the  constitu- 
tion, leaving  the  executive  organization  to  be  built  up  by  statutory 
enactments. 

In  the  bulletin  on  the  short  ballot  will  be  found  some  discussion 
of  the  application  of  the  short  ballot  principle  to  state  executive 
organization.  The  subject  of  the  executive  veto  power  is  dealt  with 
in  only  an  incidental  way  in  this  bulletin,  but  will  be  found  fully 
discussed  in  the  bulletin  dealing  with  the  legislative  department.  The 
relationship  of  the  governor  to  appropriations  is  fully  discussed  in  a 
bulletin  dealing  with  state  and  local  finance.  So  far  as  they  have 
to  do  with  the  legislative  and  judicial  departments,  the  problems  of 
appointment  and  removal  of  officers  will  be  found  discussed  in 
bulletins  upon  the  legislative  and  judicial  departments.  It  has  been 
thought  desirable,  however,  to  present  in  this  bulletin  a rather  full 
review  of  the  present  constitutional  provisions  bearing  upon  appoint- 
ment and  removal,  inasmuch  as  these  matters  primarily  concern  the 
executive  department. 


623 


II.  DEVELOPMENT  OF  THE  EXECUTIVE  DEPARTMENT. 


Constitutional  Development.  The  constitution  of  1818  gave 
little  power  to  the  executive  department.  It  provided  that  the 
executive  power  of  the  State  should  be  vested  in  a Governor,  but 
his  powers  were  curtailed  by  granting  extensive  appointive  powers 
to  the  General  Assembly,  and  by  placing  the  veto  power  in  the  hands 
of  a council  of  revision  composed  of  the  Governor  and  the  judges 
of  the  Supreme  Court.  The  General  Assembly  was  empowered  to 
appoint  judges  of  the  Supreme  Court  and  of  inferior  courts,  and 
“an  auditor  of  public  accounts,  an  attorney  general,  and  such  other 
officers  for  the  State  as  may  be  necessary  ...”  The  Governor 
appointed  the  secretary  of  state  with  the  advice  and  consent  of  the 
Senate. 

The  power  of  the  General  Assembly  to  appoint  certain  officers 
proved  unsatisfactory  and  the  framers  of  the  constitution  of  1848 
took  steps  to  change  this  method  of  appointment.  The  first  constitu- 
tion contained  the  provision  that  the  governor  should  appoint  with 
the  advice  and  consent  of  the  Senate  all  officers  whose  offices  were 
established  by  the  constitution  or  by  law  and  whose  appointment 
was  not  therein  otherwise  provided  for.  The  constitution  of  1848 
added  the  provision,  “And  no  such  officer  shall  be  appointed  or 
elected  by  the  General  Assembly.”  The  intention  to  strengthen 
the  executive  was  further  demonstrated  by  the  abolition  of 
the  Council  of  Revision  and  the  substitution  of  a qualified  veto 
power  exercised  by  the  governor  alone.  A majority  vote  of  both 
houses,  however,  was  all  that  was  necessary  to  pass  a measure  over 
the  Governor’s  veto  and  this  was  the  same  vote  as  had  been  necessary 
to  enact  a measure  after  its  disapproval  by  the  Council  of  Revision. 
The  Constitution  of  1870  again  strengthened  the  power  of  the  execu- 
tive at  the  expense  of  the  General  Assembly  by  making  a two-thirds 
vote  necessary  to  override  the  veto  of  the  Governor.  Fourteen  years 
after  the  adoption  of  the  constitution  (in- 1884)  the  people  ratified  the 
only  amendment  to  the  executive  article  of  the  constitution  of  1870 
that  has  been  adopted.  This  amendment  further  strengthened  the  gov- 
ernor’s power  by  empowering  him  to  veto  items  and  sections  in  appro- 
priation bills.  This  was  an  important  step  toward  giving  the  executive 
a position  of  definite  responsibility  in  regard  to  state  appropriations  and 
expenditures. 

Part  of  the  appointive  power  which  the  General  Assembly 
possessed  under  the  first  constitution  was  in  1848  given  to  the 
Governor,  and  part  of  it  was  given  to  the  people  by  providing  for 


624 


more  elective  state  officers.  Under  the  Constitution  of  1848,  the 
secretary  of  state,  auditor,  and  treasurer  were  elective,  in  addition 
to  the  Governor  and  the  lieutenant  governor,  who  were  the  only 
popularly  elective  state  officers  under  the  Constitution  of  1818.  The 
growing  tendency  to  increase  the  number  of  state  officers  was  mani- 
fest in  the  proposed  constitution  of  1862.  Its  enumeration  of  elective 
state  officers,  like  many  of  its  other  provisions  concerning  the  execu- 
tive department,  was  a few  years  later  embodied  in  the  constitution 
of  1870.  It  proposed  to  have  the  same  seven  elective  state  officers 
we  have  today:  Governor,  lieutenant  governor,  secretary  of  state, 

auditor  of  public  accounts,  treasurer,  superintendent  of  public 
instruction  and  attorney  general.  These  officers  were  only  to  be 
elected  for  a two-year  term,  which  seems  to  indicate  some  dissatisfac- 
tion with  popularly  elected  state  officials.  However,  the  terms  of 
all  popularly  elected  state  officers,  except  treasurer,  were  fixed  at 
four  years  by  the  Constitution  of  1870,  and  the  restriction  that  the 
Governor  could  only  serve  four  years  in  any  term  of  eight  years  was 
omitted. 


Statutory  development.  In  the  preceding  paragraphs  we  have 
traced  the  constitutional  development  of  the  executive  department. 
There  still  remains  to  be  considered  the  statutory  development.  The 
General  Assembly  has  all  powers  not  granted  to  the  federal  govern- 
ment nor  forbidden  the  states  by  the  Constitution  of  the  United 
States,  and  all  powers  not  forbidden  it  by  the  state  constitution. 
Under  these  broad  powers  the  General  Assembly  has  enacted  many 
statutes  dealing  with  the  executive  department.  The  statutes,  in 
fact,  cover  the  greater  part  of  this  bulletin,  and  consideration  of 
them  is  necessary  in  order  to  present  the  constitutional  problems 
at  issue. 

The  creation  of  separate  offices,  departments,  boards  and  institu- 
tions, many  of  them  with  extensive  powers,  has  been  a gradual 
development.  These  statutory  agencies  were  not  a very  important 
consideration  for  the  framers  of  our  earlier  constitutions,  for  the 
executive  department  was  not  nearly  as  complex  as  it  is  today.  At 
the  time  of  the  adoption  of  the  Constitution  of  1848,  the  constitu- 
tional state  officers,  and  three  state  institutions  embraced  the  entire 
executive  department.  When  the  Constitutional  Convention  of  1862 
met,  two  institutions,  a normal  school,  and  two  officers  had  been 
added.  Between  1862  and  1870,  six  institutions,  a normal  school, 
the  university  and  seven  boards  and  offices  were  added,  so  that  when 
the  framers  of  the  Constitution  of  1870  met  they  were  dealing  with 
an  executive  department  consisting  of  five  state  officers  and  about 
twenty-five  independent  offices,  boards  and  institutions,  which  is 
less  than  one-fourth  of  the  number  that  existed  in  1917. 

Each  succeeding  session  of  the  General  Assembly  has  led  to  the 
establishment  of  new  authorities,  often  with  little  reference  to  previ- 
ously existing  authorities,  either  as  to  form  of  organization  or  the 
scope  of  their  powers.  Most  of  them  were  substantially  independent 


G25 


of  each  other,  and  subject  to  no  control  except  the  nominal  super- 
vision of  the  Governor.  The  assumption  by  the  state  of  each  new 
function,  as  a rule,  involved  the  creation  of  a state  administrative 
board,  commission  or  officer,  to  which  was  entrusted  the  direct 
exercise  of  the  function.  These  independent  agencies  tended  toward 
the  decentralization  of  the  executive  power,  for  the  increase  in  the 
number  of  appointive  offices  did  not  bring  about  a corresponding 
increase  in  the  administrative  importance  of  the  Governor. 

A state  board  of  equalizaton  had  been  created  in  1867  and  its 
administration  of  state  revenues  seems  to  have  caused  the  first 
tangible  dissatisfaction  with  these  independent  agencies.  Its  mem- 
bers were  elected,  one  from  each  congressional  district,  and 
it  grew  to  be  and  long  remained  an  important  factor  in  state 
politics.  A legislative  commission  appointed  to  investigate  the  reve- 
nue system  of  the  state  recommended  its  abolition  as  early  as  1886, 
and  a tax  commission  made  the  same  recommendation  in  1910. 


Consolidation.  Naturally,  this  irresponsible  system  of  inde- 
pendent state  boards  was  particularly  bad  for  the  state  institutions, 
and  because  of  their  large  number,  geographical  distribution,  and 
the  fact  that  they  were  spending  the  bulk  of  the  appropriations, 
the  conditions  eventually  became  known  to  the  people.  In  response 
to  insistent  demands  because  of  some  specific  abuses,  Speaker  Ed- 
ward D.  Shurtleff  appointed  a special  investigating  committee  Janu- 
ary 14,  1908,  in  accordance  with  a resolution  passed  by  the  House 
of  Representatives.  This  committee  published  an  exhaustive  report 
of  over  a thousand  pages.  It  found  the  institutions  in  an  unsatis- 
factory condition  and  recommended  the  creation  of  a central  state 
board  of  control  for  their  administration.  Accordingly,  a board 
of  administration  was  created  the  following  year  (1909),  to  which 
was  given  the  management  and  control  of  all  the  state  charitable 
institutions. 

The  same  session  of  the  General  Assembly  that  provided  for  the 
investigation  of  state  institutions  also  passed  a resolution  directing 
the  Governor  to  appoint  an  educational  commission  to  investigate 
the  common  school  system  of  the  state.  This  commission  published 
a comprehensive  report  on  this  subject  and  drafted  a bill  providing 
for  the  creation  of  a state  board  of  education  to  strengthen  our 
common  school  system.  This  board  was  to  consist  of  the  superin- 
tendent of  public  insruction,  as  chairman,  and  representatives  of 
various  school  interests  selected  by  the  Governor  with  the  approval 
of  the  Senate. 

In  1913,  the  work  of  the  fish  commission  and  the  game  com- 
missioner was  consolidated,  and  a game  and  fish  conservation  com- 
mission was  created  to  perform  their  functions. 

In  his  inaugural  address,  in  1913,  Governor  Edward  F.  Dunne 
recommended  the  abolition  of  the  state  board  of  equalization,  the 
consolidation  of  the  park  boards  of  the  city  of  Chicago,  and  an 
examination  into  the  affairs  of  the  public  institutions  of  the  state 


626 


with  a view  to  the  reduction  of  expenditures.  Subsequently,  a reso- 
lution  was  passed  by  the  General  Assembly  directing  an  investiga- 
tion of  the  state  boards,  commissions  and  bureaus  in  order  to  deter- 
mine whether  greater  efficiency  and  economy  could  be  secured  by  a 
reorganization  and  consolidation  of  administrative  machinery. 

The  committee  appointed  to  carry  on  this  work  was  known  as 
“The  Efficiency  and  Economy  Committee.”  After  an  exhausive  in- 
vestigation, the,  qommittee  submitted  a report  recommending  the 
consolidation  of  more  than  a hundred  state  offices  into  ten  "depart- 
ments, under  authorities  directly  responsible  to  the  Governor  for 
the  conduct  of  their  departments.  The  committee  also  recommended 
a revision  of  the  laws  relating  to  state  contracts,  and  this  revision 
was  made  by  the  General  Assembly  in  1915.  The  office  of  printer 
expert  was  abolished  and  a superintendent  of  public  printing 
created  with  extensive  and  effective  powers,  but  responsible  to  the 
Governor.  This  was  practically  the  only  change  recommended  by  the 
Efficiency  and  Economy  Committee  made  at  the  session  of  1915,  but 
the  report  of  the  committee  formed  the  basis  for  the  Civil  Admini- 
strative Code,  which  was  enacted  two  years  later. 

In  1916,  Governor  Frank  O.  Lowden  made  his  campaign  for  the 
Republican  nomination  and  for  election  largely  upon  the  issue  of  state 
administrative  reorganization.  After  his  election,  the  General  As- 
sembly, in  1917,  passed  the  Civil  Administrative  Code.  It  consoli- 
dated into  nine  departments  more  than  fifty  functions  and  depart- 
ments previously  independent  of  each  other.  It  also  provided  for 
an  executive  budget.  It  is  probably  the  most  important  and  effective 
measure  relating  to  governmental  reorganization  that  has  been  en- 
acted in  any  state  in  the  Union. 

The  51st  General  Assembly,  in  1919,  abolished  the  board  of 
equalization  and  created  a state  tax  commission  in  its  place.  This 
General  Assembly  also  provided  for  the  appointment  of  a commission 
to  investigate  and  report  a plan  for  the  standardization  of  compensa- 
tion of  employes  of  the  state,  which  is  closely  related  to  the  impor- 
tant question  of  civil  service.  We  have  been  discussing  administra- 
tive officers  and  agencies.  There  remains  to  be  considered  the  em- 
ployes in  the  various  divisions  of  the  executive  department. 


Civil  service.  The  demand  for  a state  civil  service  system  was 
first  made  a political  issue  in  1900.  At  that  time  there  were  but 
two  state  civil  service  commissions  in  the  country — New  York  and 
Massachusetts.  In  1905  a civil  service  law  was  enacted  which  applied 
the  merit  system  of  appointment  to  persons  employed  in  the 
charitable  institutions  of  the  state,  excluding  all  members  of 
charitable  boards,  trustees  and  commissioners,  superintendents  of 
charitable  institutions,  one  chief  clerk  and  one  stenographer  for 
each  institution.  In  each  succeeding  political  campaign,  both  leading 
parties  pledged  their  support  to  the  extension  of  civil  service.  In 
1909,  with  the  establishment  of  the  state  board  of  administration, 
forty-seven  new  positions  came  under  the  merit  system.  The  follow- 


627 


ing  year  the  question,  “Shall  the  next  General  Assembly  extend  the 
merit  system  by  the  enactment  of  a comprehensive  and  adequate 
state  civil  service  law?”  was  submitted  to  the  voters  of  the  state 
under  the  public  policy  law.  The  result  was  411,676  in  favor  of 
extension  and  121,132  against  extension.  The  civil  service  law  was 
amended  in  1911  by  extending  the  merit  system  to  many  additional 
positions  and  places  of  employment  in  the  state  service,  with  certain 
exemptions.  As  a result  of  this  extension,  about  two  thousand  new 
employes  were  brought  under  civil  service,  or  eighty  per  cent  of  the 
entire  service  of  the  state,  making  a total  of  4,479  employes  under 
civil  service  as  compared  with  2,259  during  the  previous  year.1 

The  following  year  the  constitutionality  of  the  law  was  upheld 
by  the  Supreme  Court  in  the  case  of  People,  ex  rel  Gullett  v.  Mc- 
Cullough, 254  111.,  9 (1912),  which  is  discussed  in  this  bulletin  under 
the  functions  of  the  civil  service  commission.  The  act  has  been 
repeatedly  upheld  by  the  Supreme  Court.  The  court  has  decided, 
however,  that  the  state  board  of  agriculture  (which  was  abolished 
January  1,  1919)  and  the  farmers’  institute  are  not  state  depart- 
ments, their  employes  are  not  state  employes,  and,  consequently, 
they  were  not  under  the  civil  service  law,  although  supported  by 
state  appropriations.2 

The  next  session  after  the  extension  of  the  civil  service  law 
(1913)  saw  the  beginning  of  a movement  to  increase  the  number  of 
exemptions  from  civil  service.  The  state  highway  department  and 
the  public  utilities  commission  were  created  and  several  positions 
in  these  departments  were  exempted  from  civil  service.  The  Civil 
Administrative  Code  enacted  in  1917  did  not  amend,  modify  or 
extend  the  application  of  the  civil  service  law.  When  the  code  went 
into  effect  practically  every  employe  in  the  classified  service  of  the 
agencies  that  were  abolished  was  transferred  to  a corresponding 
position  under  the  new  organization. 

The  Fiftieth  General  Assembly  (1917),  however,  also  enacted  a 
statute  providing  that  removals  from  civil  service  could  be  made 
without  a trial  or  hearing,  and  that  the  civil  service  commission 
had  no  jurisdiction  to  review  the  act  of  the  removing  officer,  nor  to 
investigate  the  removal  or  a reduction  in  rank  unless  it  was  alleged 
that  the  removal  or  reduction  was  made  for  political,  racial  or 
religious  reasons.  The  act  also  removed  from  the  classified  service 
of  the  state  the  superintendent  and  assistant  superintendent  of  the 
capitol  building  and  grounds,  all  law  clerks  and  special  investigators 
in  the  office  of  the  attorney  general,  a private  secretary  and  a stenog- 
rapher for  each  elective  officer,  a private  secretary  to  each  director 
under  the  Civil  Administrative  Code,  and  insurance  actuaries  and 
examiners  of  insurance  companies.  The  Fifty-first  General  Assembly 
in  1919  still  further  extended  the  exemptions  by  providing  that  all 
regularly  licensed  veterinary  surgeons  employed  by  the  department 
of  agriculture,  and  all  clerks,  watchmen  and  policemen  employed 
in  the  offices  of  the  elective  officers  in  the  executive  department,  and 

1 Sixth  annual  report  of  the  civil  service  commission  of  Illinois.  1911,  v.  1,  p.  8. 

2 State  Board  of  Agriculture  v.  Brady,  266  111.  592  (1915);  Illinois  Farmers’ 
Institute  v.  Brady,  267  111.  98  (1915). 


628 


in  the  office  of  the  clerk  of  the  Supreme  Court  should  be  exempt 
from  the  classified  service.  It  established  a precedent  by  providing 
in  an  act  creating  a new  board,  the  board  for  vocational  education, 
that  the  board  might  appoint  without  reference  to  the  civil  service 
law  such  technical  assistants,  clerks  and  stenographers  as  might  be 
necessary. 

On  December  1,  1919,  there  were  6,285  persons  in  the  classified 
civil  service  of  the  state.  Of  this  number  3,943  were  in  the  depart- 
ment of  public  welfare. 


Increase  in  appropriations.  The  appropriations  for  the  bien- 
nium 1873-1874  were  $6,648,187.  According  to  the  statement  issued  by 
the  auditor  of  public  accounts,  the  appropriations  for  the  biennium 
1919-1920  were  $172,631,183.  Of  this  amount  $60,000,000  is  to  be 
expended  for  a state  system  of  hard  roads,  bonds  for  this  amount 
having  been  authorized  by  popular  vote ; $20,000,000  is  for  a deep 
waterway,  this  expense  also  to  be  defrayed  by  a bond  issue ; and 
$29,195,124  is  for  state  and  federal  aid  roads.  That  is  $109,195,124 
is  for  roads  and  waterways,  leaving  $63,436,059,  the  amount  appro- 
priated for  governmental  expenses  for  the  biennium.  It  is  difficult 
to  make  any  comparison  of  appropriations  by  departments  because, 
in  some  cases,  large  amounts  are  appropriated  to  various  officers  and 
departments  which  have  little  contol  over  the  expenditure  of  the 
appropriations.  The  school  fund  which  amounts  to  $12,000,500  for 
the  biennium  1919-1920  is  appropriated  to  the  auditor,  but  the 
superintendent  of  public  instruction  is  the  officer  most  closely  related 
to  its  expenditure. 

The  department  of  public  welfare  and  the  University  of  Illinois 
also  receive  large  appropriations.  The  appropriations  to  the  depart- 
ment of  public  welfare  for  the  state  charitable,  penal  and  reform- 
atory institutions  for  the  biennium  1919-1920  are  $19,636,213.  The 
University  of  Illinois  has  an  appropriation  of  $5,000,500  for  the  same 
biennium. 

The  amount  appropriated  for  the  biennium  1919-1920  was  nearly 
ten  times  the  amount  appropriated  for  1873-1874.  This  increase  was 
due  largely  to  the  increase  in  functions  within  the  last  half  century. 
Many  new  functions  have  been  assumed  by  the  state  and  these  func- 
tions-are  performed  primarily  by  the  executive  department. 


Summary.  In  summarizing  the  development  of  the  organiza- 
tion of  the  executive  department  we  find  that  the  executive  department 
of  the  state  of  Illinois  is  now  composed  of  the  Governor,  and  six  other 
elective  constitutional  state  officers,  practically  independent  of  him ; 
nine  departments  operating  under  the  Civil  Administrative  Code ; 
and  twenty-one  independent  statutory  boards,  commissions  and  offi- 
ces, less  than  half  of  such  boards,  commissions  and  offices  being 


629 


appointed  by  the  Governor.  There  is  also  a classified  civil  service 
consisting  of  more  than  six  thousand  employes,  and,  in  addition, 
numerous  officers  and  employes  exempt  from  civil  service. 

The  constitutional  convention  is  confronted  with  the  problem  of 
framing  an  executive  article  in  a new  constitution  broad  enough  to 
form  the  fundamental  basis  for  the  operation  of  this  complex  execu- 
tive department. 

Every  passing  year  sees  the  assumption  by  the  state  of  new  func- 
tions, and  it  will  be  necessary  to  have  broad  constitutional  provisions, 
not  requiring  frequent  change,  to  provide  for  an  executive  department 
to  exercise  these  constantly  changing  and  increasing  statutory  func- 
tions. 


L 


630 


III.  DESCRIPTION  OF  THE  CONSTITUTIONAL  AND 
STATUTORY  FUNCTIONS  OF  CONSTITU- 
TIONAL STATE  OFFICERS. 


Constitution  of  1870.  The  constitution  provides  that  each  of 
the  officers  of  the  executive  department,  with  the  exception  of  the 
treasurer,  shall  hold  his  office  for  a term  of  four  years,  from  the  sec- 
ond Monday  in  January  next  after  his  election,  and  until  his  successor 
is  elected  and  qualified.  The  election  for  Governor,  lieutenant  gov- 
ernor, secretary  of  state,  auditor  of  public  accounts  and  attorney 
general,  is  held  on  the  Tuesday  next  after  the  first  Monday  of  Novem- 
ber, every  four  years.  The  next  election  will  take  place  in  November, 
1920.  The  state  treasurer  is  elected  every  two  years.  The  superin- 
tendent of  public  instruction  is  elected  for  a term  of  four  years  at  an 
election  held  midway  between  the  general  elections  for  officers  of  the 
executive  department. 

The  returns  of  these  elections  are  directed  by  the  constitution  to 
be  sealed  up  and  transmitted  by  the  returning  officers  to  the  secretary 
of  state,  directed  to  the  “Speaker  of  the  House  of  Representatives,” 
who,  immediately  after  the  organization  of  the  House,  before  pro- 
ceeding to  other  business,  opens  and  publishes  them  in  the  presence 
of  a majority  of  each  house  of  the  General  Assembly,  assembled  in 
the  hall  of  the  house  of  representatives.  The  person  having  the 
highest  number  of  votes  for  either  of  said  offices,  is  declared  duly 
elected.  If  two  or  more  have  an  equal  and  the  highest  number  of 
votes,  the  General  Assembly,  by  joint  ballot,  chooses  one  of  such 
persons  for  the  office.  Contested  elections  for  any  office  are  deter- 
mined by  both  houses  of  the  General  Assembly,  by  joint  ballot,  in  such 
manner  as  may  be  determined  by  law. 

No  officer  of  the  executive  department  is  eligible  to  any  other 
office  during  the  term  for  which  he  is  elected.  If  the  office  of  auditor, 
treasurer,  secretary  of  state,  attorney  general  or  superintendent  of 
public  instruction  becomes  vacant  by  death,  resignation  or  otherwise, 
the  Governor  is  empowered  to  fill  the  office  by  appointment,  and  the 
appointee  holds  his  office  until  his  successor  has  been  elected  and 
qualified,  in  such  manner  as  may  be  prescribed  by  law.  The  Governor 
and  all  civil  officers  of  the  state  are  liable  to  impeachment  for  any 
misdemeanor  in  office. 

No  qualifications  are  prescribed  for  any  of  these  officers,  except 
the  Governor  and  lieutenant  governor.  An  account  is  required  to  be 
kept  by  all  officers  of  the  executive  department,  and  of  all  the  public 
institutions  of  the  state,  of  all  moneys  received  or  disbursed  by  them 
severally,  from  all  sources  and  for  every  service  performed,  and  a 
semi-annual  report  thereof  is  to  be  made  to  the  Governor  under  oath. 
Any  officer  who  makes  false  report  is  guilty  of  perjury  and  may  be 


631 


punished  according -y.  This  report  must  t>e  made  at  least  ten  days 
preceding  each  regular  session,  and  the  Governor  transmits  such 
reports  to  th  General  Assembly,  together  with  the  reports  of  the 
judges  of  the  Supreme  Court,  of  defects  in  the  constitution  and  laws. 
The  Governor  may,  at  any  time,  require  information,  in  writing, 
under  oath,  from  the  officers  of  the  executive  department  and  all  offi- 
cers and  managers  of  state  institutions,  upon  any  subject  relating  to 
the  condition,  management  and  expenses  of  their  respective  offices. 

The  officers  of  the  executive  department  receive  for  their  services, 
a salary  established  by  law,  which  may  not  be  increased  or  diminished 
during  their  official  terms,  and  they  may  not  receive  to  their  own  use, 
any  fees,  costs,  perquisites  of  office  or  other  compensation.  All  fees 
payable  by  law  for  any  services  performed  by  them  must  be  paid  in 
advance  into  the  state  treasury. 

All  civil  officers,  except  members  of  the  General  Assembly  and 
such  inferior  officers  as  may  be  by  law  exempted,  are  required  to  take 
an  oath,  which  is  set  forth  in  full  in  the  constitution,  and  no  other  oath, 
declaration  or  test  may  be  required  as  a qualification.  The  article  of 
the  constitution  which  deals  with  the  executive  department  defines 
an  office  and  an  employment  as  follows : “An  office  is  a public  insti- 

tution created  by  the  constitution  or  law,  continuing  during  the  pleas- 
ure of  the  appointing  power,  or  for  a fixed  time  with  a successor, 
elected  or  appointed.  An  employment  is  an  agency,  for  a temporary 
purpose,  which  ceases  when  that  purpose  is  accomplished.” 


Constitutions  of  1818  and  1848.  A number  of  the  general  pro- 
visions of  the  earlier  constitutions  concerning  state  officers  have  been 
outlined  in  the  history  of  the  organization  of  the  executive  branch  of 
state  government,  at  the  beginning  of  this  bulletin.  Among  others 
which  are  of  interest  are  the  provisions  concerning  residence.  The 
first  restriction  as  to  residence  of  state  officers,  occurred  in  the  con- 
stitution of  1848  which  provided  that  the  Governor  must  reside  at  the 
seat  of  government  during  his  term  of  office  and  the  constitution  of 
1870  embodied  the  provisions  that  all  state  officers,  except  lieutenant 
governor,  must  reside  at  the  seat  of  government  during  their  term  of 
office. 

The  constitution  of  1848  contained  distinctive  provisions  con- 
cerning the  salaries  of  state  officers.  The  constitution  of  1818  pre- 
scribed the  amounts  of  salaries  to  be  paid  until  1824,  and  after  that  the 
General  Assembly  had  the  power  to  fix  salaries.  The  constitution  of 
1848  prescribed  the  amounts  to  be  paid  state  officers,  and  in  the  pro- 
posed constitution  of  1862  we  find  for  the  first  time  the  present  pro- 
vision that  they  shall  receive  such  salaries  as  are  established  by  law. 

The  constitution  of  1848  contained  distinctive  provisions  con- 
cerning oath  of  office  and  impeachment.  All  civil,  military,  legisla- 
tive, executive  and  judicial  officers,  were  required  to  take  an  oath  that 
they  had  not  fought  a duel,  nor  sent  or  accepted  a challenge  to  fight 
a duel,  nor  been  a second,  nor  in  any  way  aided  or  assisted  in  a duel 
since  the  adoption  of  the  constitution,  and  that  they  would  not  engage 


632 


in  or  be  connected  with  any  duel  during  their  continuance  in  office. 
Possibly  this  oath  was  inserted  because  of  the  agreement  between  two 
members  of  the  convention  to  fight  a duel,  to  settle  differences  which 
arose  in  a bitter  debate  on  the  floor  of  the  convention.  The  duel  was 
to  be  held  near  St.  Louis  and  was  only  stopped  by  the  intervention  of 
the  police.1 

The  first  constitution  contained  the  same  provision  concerning 
impeachment  of  civil  officers  that  we  have  in  our  constitution  today, 
“The  Governor  and  all  civil  officers  of  the  state  are  liable  for  impeach- 
ment for  any  misdemeanor  in  office.”  The  constitution  of  1848,  pro- 
vided, however,  that  the  Governor  and  all  civil  officers  should  be  liable 
for  impeachment,  during  their  continuance  in  office  and  for  two  years 
thereafter. 


Statutes.  Salaries  of  constitutional  state  officers  are  payable 
quarterly  out  of  the  state  treasury  on  the  warrant  of  the  auditor.  One 
private  secretary  and  one  stenographer  for  each  elective  officer  in  the 
executive  department  and  all  clerks,  watchmen  and  policemen  in  these 
offices  are  exempt  from  civil  service. 


The  Governor.  The  Constitution  of  1870  declares  that 
the  executive  department  shall  consist  of  a Governor,  lieutenant 
governor,  secretary  of  state,  auditor  of  public  accounts,  treasurer,  su- 
perintendent of  public  instruction  and  attorney  general,  and  that  the 
supreme  executive  power  of  the  state  shall  be  vested  in  the  Governor, 
who  shall  take  care  that  the  laws  be  faithfully  executed.  The  Gov- 
ernor and  the  lieutenant  governor  must  have  attained  the  age  of  thirty 
years  and  have  been  for  five  years  next  preceding  their  election,  citi- 
zens of  the  United  States  and  of  this  state. 

The  Governor  is  required  by  the  constitution  to  give  the  legisla- 
ture at  the  commencement  of  each  session  and  at  the  close  of  his  term, 
information  by  message  of  the  condition  of  the  state  and  to  recom- 
mend such  measures  as  he  may  deem  expedient.  He  is  also  required 
to  accompany  his  message  with  a statement  of  all  state  funds  received 
and  paid  out  by  him,  together  with  an  estimate  of  the  amount  of 
money  to  be  raised  by  taxation  for  all  purposes.  He  may  convene 
the  General  Assembly  in  extraordinary  session,  and  in  case  of  a disa- 
greement between  the  two  houses  with  respect  to  adjournment,  he 
may  adjourn  it  to  such  a time  as  he  thinks  proper,  provided  it  is  not 
beyond  the  first  day  of  the  next  regular  session.  This  can  only  be 
done  upon  the  certification  of  the  fact  of  disagreement  by  the  house 
first  moving  the  adjournment. 

With  the  advice  and  consent  of  the  senate  the  Governor  may 
appoint  all  officers  whose  appointment  or  election  is  not  otherwise 
provided  for  by  law,  and  no  such  officers  may  be  elected  or  appointed 
by  the  General  Assembly  itself.  In  case  of  a vacancy,  during  the 


1 Moses’  Illinois  historical  and  statistical,  v.  2 p.  556, 


633 


recess  of  the  senate,  in  any  office  which  is  not  elective,  the  Governor 
is  directed  to  make  a temporary  appointment  until  the  next  meeting  of 
the  senate.  He  is  also  empowered  to  remove  any  officer,  whom  he 
may  appoint,  for  incapacity,  neglect  of  duty  or  malfeasance  in  office, 
and  fill  the  office  by  a temporary  appointment  until  the  next  meeting  of 
the  senate.  After  rejection  by  the  senate  no  person  can  be  nominated 
again  for  the  same  office  at  the  same  session  unless  at  the  request  of 
the  senate,  nor  may  such  person  after  rejection  be  appointed  to  the 
same  office  during  a recess  of  the  General  Assembly.  The  Governor 
is  liable  for  impeachment  for  any  misdemeanor  in  office.  If  the  office 
of  any  of  the  constitutional  elective  offices  of  the  executive  department 
(except  the  lieutenant  governor)  is  vacated  by  death,  resignation  or 
otherwise,  it  is  the  duty  of  the  Governor  to  fill  the  office  by  appoint- 
ment, and  the  appointee  holds  his  office  until  his  successor  is  elected 
and  qualified. 

In  case  of  the  death,  conviction  on  impeachment,  failure  to  qual- 
ify, absence  from  the  state,  or  other  disability  of  the  Governor,  the 
powers,  duties,  and  emoluments  of  the  office,  for  the  residue  of  the 
term,  or  until  the  disability  is  removed,  devolve  upon  the  lieutenant 
governor.  If  there  is  no  lieutenant  governor,  or  if  he  is  incapable  of 
performing  the  duties  of  the  office,  the  president  of  the  senate  acts  as 
governor,  until  the  vacancy  is  filled  or  the  disability  removed,  and  if  the 
president  of  the  senate  is  incapable  of  performing  the  duties  of  Gover- 
nor, they  devolve  upon  the  speaker  of  the  house  of  representatives. 

Through  his  veto  power  the  Governor  has  an  important  control 
over  the  legislative  department  of  the  government.  Every  bill,  which 
passes  the  senate  and  the  house  of  representatives,  must,  before  it 
may  become  a law,  be  presented  to  the  governor.  If  signed  by  him, 
it  becomes  a law.  If  he  disapproves  it,  he  is  required  to  return  it  with 
his  objections  to  the  house  in  which  it  originated.  If  both  houses,  two- 
thirds  of  the  members  concurring,  pass  the  bill  again,  it  becomes  a law 
notwithstanding  the  disapproval  of  the  Governor.  If  he  fails  to  return 
any  bill  submitted  to  him  within  ten  days  (Sundays  excepted),  it  be- 
comes a law,  as  if  he  had  signed  it,  unless  the  General  Assembly  by 
its  adjournment  in  the  meantime,  prevents  its  return,  in  which  case  it 
becomes  a law  unless  he  files  it  with  his  objections'  in  the  office  of  the 
secretary  of  state  within  ten  days  of  such  adjournment.  An  amend- 
ment to  this  section  of  the  constitution  adopted  in  1884  permits  the 
disapproval  of  items  and  sections  of  appropriation  bills.2 

When  vacancies  occur  in  either  house  of  the  General  Assembly 
the  Governor  is  directed  to  issue  writs  of  election  to  fill  such  vacancies. 
When  vacancies  occur  in  the  representation  of  any  state  in  the  United 
States  Senate  the  Governor  is  directed  by  the  constitution  of  the 
United  States  to  issue  writs  of  election  to  fill  such  vacancies,  but  the 
legislature  may  empower  he  Governor  to  make  temporary  appoint- 
ments until  the  vacancy  is  filled  by  election. 

The  Governor  also  has  some  powers  with  respect  to  judicial  mat- 
ters. He  may  grant  reprieves,  commutations  and  pardons,  after  con- 
viction, for  all  offenses,  subject  to  the  regulations  prescribed  by  law 

2 Fergus  v.  Russel,  270  111.  304  (1915);  People  ex  re!  State  Board  of  Agri- 
culture v.  Brady,  277  111.  124  (1917). 


634 


relative  to  the  application  for  such  pardons,  reprieves  and  commuta- 
tions. He  commissions  all  judicial  officers  of  the  state.  In  case  of 
vacancy,  where  the  unexpired  term  of  a judge  does  not  exceed  one 
year,  he  has  the  power  of  making  an  appointment  to  fill  such  vacancy. 
The  judges  of  the  Supreme  Court  are  directed  to  report  to  him  in  writ- 
ing such  defects  and  omissions  in  the  constitution  and  laws  as  they  may 
find  to  exist,  together  with  approved  forms  of  bills. 

Another  important  power  of  the  Governor  is  his  right  to  disap- 
prove contracts  for  fuel,  stationery  and  printing  paper  for  the  use  of 
the  state,  contracts  for  printing,  binding  and  distributing  laws  and 
journals  and  all  other  printing  ordered  by  the  General  Assembly. 

The  Governor  is  the  commander-in-chief  of  the  state  militia  and 
may  call  out  any  part  of  it  to  execute  the  laws,  suppress  insurrection 
and  repel  invasion.  He  commissions  all  militia  officers  of  the  state. 

The  constitution  of  the  United  States  provides  that  a person 
charged  in  any  state  with  treason,  felony,  or  other  crime,  who  flees 
from  justice  and  is  found  in  another  state,  shall,  on  demand  of  the 
executive  authority  of  the  state  from  which  he  fled,  be  delivered  up 
to  be  removed  to  the  state  having  jurisdiction  of  the  crime. 

Constitutions  of  1818  and  1848.  The  wording  of  the  first 
sentences  of  the  executive  articles  of  the  constitutions  of  1818  and 
1848  is  identical.  They  declare  that,  “The  executive  power  of  the 
state  shall  be  vested  in  a governor.”  The  constitution  of  1870,  how- 
ever, provides  that  “The  supreme  executive  power  of  the  state  shall  be 
vested  in  a governor  who  shall  take  care  that  the  laws  be.  faithfully 
executed”  and  “The  executive  department  shall  consist  of  a governor, 
lieutenant  governor,  secretary  of  state,  auditor  of  public  accounts,  treas- 
urer, superintendent  of  public  instruction  and  attorney  general.”  The 
qualifications  for  governor  have  been  changed  by  each  succeeding  con- 
stitutional convention.  Under  the  constitution  of  1818,  the  Governor 
was  required  to  be  at  least  thirty  years  of  age,  a citizen  of  the  United 
States  thirty  years,  and  to  have  resided  within  this  state  two  years  next 
preceding  his  election.  The  constitution  of  1848  required  that  a per- 
son to  be  eligible  to  the  office  of  Governor  must  have  attained  the  age 
of  thirty-five  years,  and  have  been  a resident  of  this  state  for  ten  years 
and  a citizen  of  the  United  States  for  fourteen  years. 

The  veto  power  of  the  Governor  was  of  little  importance  under 
the  first  constitution.  A council  of  revision  composed  of  the  Governor 
and  the  judges  of  the  Supreme  Court  was  given  this  power.  This 
council  was  empowered  to  pass  upon  all  bills  which  passed  the  house 
of  representatives  and  the  senate.  If  it  should  appear  improper  to  them 
that  a bill  should  become  a law  they  were  directed  to  return  the  bill, 
together  with  their  objections,  to  the  house  in  which  the  bill  originated. 
If  upon  reconsideration  it  was  approved  by  a majority  of  the  members 
elected  to  both  houses,  it  became  a law  over  their  objections.  If  the 
bill  was  not  returned  within  ten  days  after  it  was  presented,  it  became 
a law.  The  council  of  revision  was  abolished  by  the  constitution  of 
1848  and  the  Governor  was  given  a qualified  veto  power.  Under  the 
earlier  constitution  a bill  could  be  passed  over  the  objection  of  the 
Governor  by  the  vote  of  a majority  of  the  members  elected,  but  the 
constitution  of  1870  requires  a two-third  vote. 


635 


The  constitution  of  1818  gave  the  Governor  the  power  to  grant 
reprieves  and  pardons  after  conviction  except  in  cases  of  impeachment. 
The  provisions  of  the  constitution  of  1848  and  of  the  proposed  con- 
stitution of  1862  concerning  pardons  were  identical.  They  excepted 
the  crime  of  treason  as  well  as  impeachment  and  were  quite  detailed. 
A biennial  report  of  pardons  and  reprieves  was  required  to  be  made 
by  the  Governor  to  the  General  Assembly.  The  Governor  had  the 
power  to  suspend  the  execution  of  a sentence  for  treason  until  the 
case  could  be  reported  to  the  General  Assembly  at  its  next  meeting, 
when  the  General  Assembly  could  pass  upon  it.  These  constitutions 
also  contained  provisions  similar  to  the  present  constitution,  making 
the  pardoning  power  of  the  Governor  subject  to  such  regulations  as 
may  be  provided  by  law. 

The  power  of  the  Governor  of  this  state  to  fill  vacancies  has  gen- 
erally been  more  extensive  than  his  power  of  appointment.  The  con- 
stitution of  1848  provided  that  when  a vacancy  occurred  in  the  office 
of  secretary  of  state,  the  Governor  should  have  the  power  to  appoint 
a secretary  of  state  to  serve  until  another  was  elected  and  qualified.  It 
also  contained  the  provision  that  the  filling  of  all  vacancies  not  other- 
wise provided  for  by  the  constitution  should  be  made  in  such  manner 
as  the  General  Assembly  should  direct,  provided  no  such  officer  should 
be  elected  by  the  General  Assembly.  The  effect  of  this  proviso  was 
generally  to  place  the  power  to  fill  vacancies  in  the  Governor. 

Statutory  Powers  and  Duties.  In  case  of  a vacancy  in  the 
office  of  Governor  and  lieutenant  governor,  the  officer  perform- 
ing the  duties  of  the  office  of  the  Governor,  or  if  there  is  no  such 
officer,  the  secretary  of  state,  is  directed  to  issue  a proclamation  ap- 
pointing a day  for  a special  election  to  fill  such  vacancies,  and  to  call 
a special  session  of  the  General  Assembly  to  canvass  the  votes  of  the 
election,  unless  there  is  a regular  session  within  ninety  days. 

One  of  the  most  effective  powers  of  the  Governor  as  the  supreme 
executive  authority  of  the  state  is  the  power  of  appointment  of  officers 
of  the  executive  department.  Under  the  Civil  Administrative  Code, 
with  the  advice  and  consent  of  the  senate,  he  appoints  the  heads  of  the 
nine  departments,  of  all  divisions  of  the  departments,  and  the  mem- 
bers of  the  advisory  boards.  He  also  appoints  numerous  officers 
listed  under  the  chapter  of  this  bulletin  entitled,  “Officers  and  depart- 
ments not  created  by  the  constitution  and  not  under  the  Civil  Admin- 
istrative Code.” 

The  Governor  is  charged  by  the  Civil  Administrative  Code  and 
various  other  statutes  with  the  examination  and  approval  of  the  bonds 
of  various  state  officers  and  in  many  cases  he  may  require  additional 
security  if  he  deems  it  necessary.  Some  statutes  also  impose  upon 
him  the  duty  of  ordering  prosecution  in  the  event  of  the  violation  of 
any  of  the  conditions  of  the  bond. 

The  Governor  has  the  power  of  appointment  of  commissioners 
to  take  acknowledgments  or  proof  of  execution  of  deeds  and  other 
instruments,  and  depositions,  in  other  states.  He  is  also  empowered 
to  appoint  one  director  for  each  pawners’  society  organized  within  the 
state,  and  this  director  is  required  to  report  to  the  Governor,  under 


636 


oath,  any  violation  of  the  provisions  of  the  law  by  the  corporation,  its 
officers  or  employes. 

The  Governor  is  authorized  to  offer  a reward  for  the  apprehen- 
sion of  fugitives  from  justice  who  are  charged  with  certain  crimes. 

The  Governor  is  directed  to  designate  an  “Arbor  and  Bird  Day’’ 
annually. 

The  Governor  is  ex  officio  chairman  of  the  joint  legislative  refer- 
ence bureau,  president  of  the  board  of  commissioners  of  the  state 
library,  a member  of  the  board  of  trustees  of  the  University  of  Illi- 
nois, primary  canvassing  board,  state  tax  levy  board  and  the  centennial 
building  commission. 

The  Governor  receives  a salary  of  $12,000  together  with  the  use 
and  occupancy  of  the  executive  mansion.  Employes  at  the  executive 
mansion  are  exempt  from  civil  service. 

The  secretary  of  state  is  required  to  keep  a register  and  record 
of  all  the  official  acts  of  the  Governor.  All  state  contracts,  which  are 
awarded  according  to  law  by  the  department  of  public  works  and 
buildings,  must  be  awarded  in  the  presence  of  the  Governor  and  sub- 
ject to  his  approval. 

The  state  canvassing  board  must  canvass  the  votes  in  the  presence 
of  the  Governor  and  he  issues  certificates  of  election  or  commissions 
in  accordance  with  the  result  of  the  election.  He  also  issues  procla- 
mations of  the  result  of  the  canvass  of  votes  on  constitutional  amend- 
ments. 

The  constitution  and  various  statutes  require  that  every  branch 
of  the  executive  department  shall  make  reports  to  the  Governor.  'He 
may  order  any  of  the  reports  to  be  printed,  bound  . and  distributed  at 
public  expense.  The  Governor  may  not  approve  any  voucher  for  ser- 
vices of  any  person  employed  in  violation  of  the  provisions  of  the  civil 
service  law  of  the  state. 

The  directors  of  each  department  under  the  Civil  Administrative 
Code  are  required  to  report  in  writing  annually  on  or  before  the  first 
day  of  December  to  the  Governor  concerning  the  condition,  manage- 
ment and  financial  transactions  of  their  respective  departments. 

With  the  approval  of  the  governor  directors  of  departments  under 
the  Civil  Administrative  Code  may  establish  and  maintain  branch 
offices  at  places  other  than  the  seat  of  government. 

The  department  of  finance  is  directed  to  prepare  and  submit  to 
the  Governor  biennially,  not  later  than  the  first  day  of  January  pre- 
ceding the  convening  of  the  General  Assemby,  a state  budget.  Not 
later  than  four  weeks  after  the  organization  of  the  General  Assembly 
the  Governor  is  directed  to  submit  the  state  budget  embracing  the 
amounts  recommended  by  him  to  be  appropriated  to  the  various  de- 
partments of  state  government,  and  for  all  other  public  purposes,  and 
the  estimated  revenue  from  taxation  and  other  sources. 

The  department  of  public  welfare  is  directed  to  investigate,  when 
asked  by  the  Governor,  into  any  or  all  phases  of  the  management  of 
state  institutions  and  to  report  its  findings. 

The  Governor  is  empowered  to  change  the  boundaries  of  the 
penitentiary  districts  of  the  state  from  time  to  time  so  as  to  make  the 
size  of  the  district  bear  due  proportion  to  the  capacity  of  the  prisons. 


637 


When  he  deems  such  change  necessary  he  certifies  the  same  to  the 
secretary  of  state,  who  is  directed  to  notify  the  proper  authorities. 
Under  the  statutes  governing  the  penitentiaries  the  Governor  is 
given  various  duties  and  powers  concerning  the  visiting  of  the  prisons, 
approval  of  exchange  of  prisoners,  and  inquiry  into  abuses  and  dis- 
cipline. 

The  Governor,  with  the  advice  and  consent  of  the  senate,  is 
empowered  to  appoint  in  each  county  in  the  state,  a public  administra- 
tor and  a public  guardian.  With  the  advice  and  consent  of  the  senate, 
the  governor  appoints  and  commissions  as  notaries  public  as  many 
persons  resident  in  the  county  in  this  state  for  which  they  are  ap- 
pointed, as  he  may  deem  necessary. 

By  legislation  enacted  before  1870,  the  Governor  is  empowered 
to  appoint  West  Chicago  park  commissioners  and  the  Lincoln  park 
commissioners,  in  the  county  of  Cook. 

When  vacancies  occur  among  certain  elective  officers  designated 
by  statute,  the  governor  is  directed  to  issue  writs  of  election  to  the 
various  county  clerks.  It  is  the  duty  of  the  county  clerks  in  certain 
cases  to  notify  the  governor  of  vacancies. 

It  is  the  duty  of  the  governor  on  or  before  October  1 of  each  year, 
to  furnish  the  board  of  election  commissioners  in  cities  which  have 
elected  to  come  under  such  boards,  the  names  of  all  persons  pardoned 
by  him  out  of  the  penitentiary  for  any  crime  of  which  the  party  was 
convicted  in  a court  of  the  county  where  said  city  is  located. 

Whenever  there  is  in  any  city,  town,  or  county,  a tumult,  riot  or 
mob,  or  body  of  men,  acting  together  by  force  with  attempt  to  commit 
a felony,  or  to  offer  violence  to  persons,  or  property,  or  to  break  or 
resist  the  laws  of  the  state,  and  this  fact  is  made  to  appear  to  the 
Governor,  it  is  his  duty  to  order  such  military  force  as  he  may  deem 
necessary  to  aid  the  civil  authorities  in  suppressing  violence  and  exe- 
cuting the  law. 

If  any  person  is  taken  from  the  hands  of  a sheriff  and  lynched,  it 
is  prima  facie  evidence  of  failure  on  the  part  of  the  sheriff  to  do  his 
duty,  and  upon  this  fact  being  made  to  appear  to  the  governor,  he  is 
directed  to  declare  the  office  of  the  sheriff  vacant.  Within  ten  days 
the  sheriff  may  file  with  the  Governor  a petition  for  reinstatement. 
If  the  Governor  finds  that  the  sheriff  did  all  in  his  power  to  protect 
the  life  of  the  person  lynched,  he  may  reinstate  the  sheriff  and  his 
descision  in  the  matter  is  final.3 

When  a vacancy  occurs  in  the  office  of  United  States  Senator, 
the  Governor  is  directed  to  make  a temporary  appointment  to  fill  such 
vacancy  until  the  next  election  of  representatives  in  congress.  Where 
vacancies  exist  among  the  representatives  in  congress  he  is  directed 
to  issue  writs  of  election  to  fill  such  vacancies. 


Lieutenant  Governor.  With  the  exception  of  a few  minor 
details,  the  provisions  of  the  three  constitutions  of  the  state  of 
Illinois  concerning  the  lieutenant  governor  are  the  same.  In  each 


3 See  People  ex  rel  Davis  vs.  Nellis,  249  111.  12  (1911). 


638 


constitution,  the  qualifications  for  lieutenant  governor  are  the 
same  as  those  for  Governor,  and  the  qualifications  for  Governor 
were  changed  by  each  succeeding  constitution.  The  lieutenant 
governor  was  given  a right  by  the  Constitutions  of  1818  and  1848, 
when  the  senate  was  in  committee  of  the  whole,  to  debate  and 
vote  on  all  subjects,  but  in  the  Constitution  of  1870  this  provision 
is  omitted. 

Under  the  present  constitution  the  lieutenant  governor  is  the 
only  officer  of  the  executive  department  who  is  not  required  to  reside 
at  the  seat  of  government  during  the  term  for  which  he  is  elected. 
He  must  be  thirty  years  of  age  and  a citizen  of  the  United  States, 
and  of  the  state  of  Illinois  for  five  years  next  preceding  his  election. 
In  case  of  the  death,  conviction  on  impeachment,  failure  to  qualify, 
resignation,  absence  from  the  state,  or  other  disability  of  the 
Governor,  the  powers,  duties  and  emoluments  of  the  office  for  the 
residue  of  the  term,  or  until  the  disability  is  removed,  devolve  upon 
the  lieutenant  governor.  He  acts  as  president  of  the  senate  and 
votes  only  when  the  senate  is  equally  divided.  The  senate  is 
directed  to  choose  a president  pro  tempore  to  preside  in  case  of  the 
absence  or  impeachment  of  the  lieutenant  governor,  or  when  he  holds 
the  office  of  Governor. 

The  only  section  of  the  statutes  which  deals  with  the  office  of 
lieutenant  governor  provides  that  he  shall  receive  an  annual  salary 
of  $2,500,  and  if  the  powers  and  duties  of  the  office  of  Governor 
devolve  upon  him,  he  shall,  during  the  continuance  of  such  emergency, 
be  entitled  to  the  emoluments  thereof. 


Secretary  of  State.  The  Constitution  of  1818  provided  that  the 
secretary  of  state  should  be  appointed  by  the  Governor  with  the  advice 
and  consent  of  the  senate.  In  1848  he  was  made  elective  at  the  same 
time  as  the  Governor,  for  a term  of  four  years,  and  these  provisions 
were  not  changed  by  the  Constitution  of  1870.  By  this  constitution  it  is 
provided  that  the  election  returns  for  officers  of  the  executive  depart- 
ment must  be  transmitted  to  the  secretary  of  state,  directed  to  the 
speaker  of  the  house  of  representatives,  and  it  is  his  duty  to  call 
the  house  of  representatives  to  order  at  the  opening  of  each  new 
assembly,  and  preside  over  it  until  a temporary  presiding  officer  has 
been  chosen  and  has  taken  his  seat.  He  is  required  to  record  and 
file  the  oaths  of  the  members  of  the  General  Assembly.  The  con- 
stitution further  provides  that  the  great  seal  of  state  be  kept  by  the 
secretary  of  state  and  used  by  him  as  directed  by  law. 

Statutory  Pozuers  and  Duties.  Most  of  the  powers  and  duties  of 
the  secretary  of  state  are  prescribed  by  statute  and  these 
statutes  cover  a number  of  unrelated  subjects.  He  is  the  keeper  of  the 
executive  records  and  of  the  records  of  the  General  Assembly  and 
he  is  required  to  furnish  certified  copies  of  any  laws  or  records  on 
file  in  his  office  on  payment  of  the  lawful  fees.  He  is  custodian 
of  the  state  buildings  and  grounds  in  Springfield.  He  has  charge 
of  the  furniture  of  the  General  Assembly  and  of  the  state  house 


639 


except  as  otherwise  provided,  and  he  has  charge  of  the  advertising 
for  bids  and  award  of  fuel  contracts  for  the  use  of  the  state  at  the 
heating  and  lighting  plant  in  Springfield. 

The  secretary  of  state  is  also  charged  with  the  licensing  of 
domestic  corporations,  the  admission  of  foreign  corporations,  and 
he  has  a limited  supervision  over  some  general  corporations  not 
subject  to  any  other  state  officer  or  board.  The  administration  of 
the  law  regulating  the  sale  of  securities,  the  so-called  “blue  sky” 
law,  is  also  given  to  him.  He  has  charge  of  the  registration  and 
licensing  of  motor  vehicles  and  the  examination  and  licensing  of 
chauffeurs. 

The  secretary  of  state  is  the  chief  administrative  officer  of  the 
election  machinery  of  this  state.  Under  the  primary  and  general 
election  laws  many  duties  in  connection  with  the  filing  of  nominating 
petitions,  certification  of  candidates,  notices  concerning  contests, 
submission  of  questions  of  public  policy  and  constitutional  amend- 
ments, canvass  of  returns  of  elections,  and  compilation  of  abstracts 
of  votes,  are  imposed  upon  him. 

The  secretary  of  state  is  also  charged  with  the  licensing  of 
itinerant  vendors ; the  recording  of  trade  marks ; the  issuance  of 
instructions  and  forms  to  commissioners  of  deeds,  appointed  to  serve 
in  other  states ; and  the  issuance  of  certificates  of  magistracy  to 
notaries  public. 

The  superintendent  of  the  capitol  buildings  and  grounds  and 
his  assistant  are  under  the  control  of  the  secretary  of  state  and  are 
exempt  from  the  provisions  of  the  civil  service  law.  The  secretary 
of  state  is  ex-officio  state  librarian,  secretary  of  the  court  of  claims, 
chairman  of  the  Illinois  library  extension  commission  and  a member 
of  the  following  boards : primary  canvassing  board,  state  canvassing 
board,  board  of  voting  machine  commissioners,  board  of  commis- 
sioners of  the  state  library,  and  centennial  building  commission. 

The  salary  of  the  secretary  of  state  is  $7,500  per  annum,  and  he 
is  required  to  give  bonds  for  $100,000  to  be  approved  by  the  Governor 
and  two  justices  of  the  Supreme  Court. 

The  secretary  of  state  is  the  keeper  of  all  public  acts,  laws  and 
resolutions  passed  by  the  General  Assembly,  and  he  has  charge  of 
the  publication  and  distribution  of  the  session  laws.  He  is  also  the 
keeper  of  the  journals  and  other  documents  which  the  clerks  of  the 
respective  houses  of  the  General  Assembly  are  required  to  deliver 
to  him  at  the  close  of  each  session. 

It  is  the  duty  of  the  secretary  of  state  to  keep  a fair  register 
of  all  the  official  acts  of  the  Governor,  to  countersign  and  affix  the 
seal  of  state  to  all  commissions  required  by  law  to  be  issued  by  the 
Governor,  and  to  make  and  keep  proper  indexes  to  all  executive 
records  in  his  office. 

The  secretary  of  state  is  authorized  to  award  certain  fuel  con- 
tracts subject  to  the  approval  of  the  Governor.  The  Civil  Administra- 
tive Code  directs  the  secretary  of  state  to  provide  rooms  for  depart- 
ments existing  under  its  provisions  and  practically  every  statute  creat- 
ing a new  department  imposes  a like  duty  upon  him. 


640 


The  secretary  of  state  is  required  to  file  his  bond  in  the  office 
of  the  auditor  of  public  accounts. 

The  treasurer  and  the  secretary  of  state  are  authorized  and 
required  to  employ  watchmen  to  guard  and  preserve  from  fire  the 
public  buildings  in  Springfield.  These  watchmen  are  exempt  from 
the  provisions  of  the  civil  service  act. 

The  secretary  of  state  and  the  various  county  clerks  have  numer- 
ous related  functions  in  connection  with  the  administration  of  the 
election  laws.  At  the  end  of  each  month  the  secretary  of  state  is 
required  to  print  and  mail  to  all  county  clerks,  sheriffs  and  chiefs 
of  police  in  cities  having  a population  of  5,000  or  over,  a complete 
list  of  all  motor  vehicles  registered  with  him,  together  with  the 
names  of  the  owners.  He  is  required  to  file  annually  a list  of  all 
corporations  and  certain  information  concerning  their  standing  with 
the  recorder  of  deeds  in  each  county.  Such  records  are  to  be  kept 
open  for  public  reference. 

The  secretary  of  state  is  required  to  keep  a register  of  all  cities, 
towns  and  villages  organized  under  the  general  incorporation  act, 
and  in  case  of  change  of  names  of  cities,  towns  or  villages,  local 
authorities  must  certify  the  same  to  the  secretary  of  state.  All 
records  of  organization  under  the  general  incorporation  act  must 
be  filed  in  his  office. 


Auditor  of  Public  Accounts.  The  Constitution  of  1818  pro- 
vided for  the  appointment  by  the  General  Assembly  of 
an  auditor  of  public  accounts  whose  duties  should  be 
regulated  by  law.  The  Constitution  of  1848  made  the 
auditor  an  officer  elected  by  the  people  for  a term  of  four  years. 
The  Constitution  of  1870  makes  no  change  in  this  provision.  It 
further  provides  that  “No  money  shall  be  drawn  from  the  treasury 
except  in  pursuance  of  an  appropriation  made  by  law  and  on  pre- 
sentation of  a warrant  issued  by  the  auditor  thereon”  and  the  auditor 
is  required  within  sixty  days  after  the  adjournment  of  each  session  of 
the  General  Assembly  to  prepare  and  publish  an  itemized  statement 
of  all  money  expended  at  the  session. 

Statutory  Powers  and  Duties.  The  auditor  is  required  to 
keep  an  official  seal  to  be  used  to  authenticate  all  writings,  papers, 
documents,  and  accounts  required  by  law  to  be  certified  from 
his  office.  It  is  his  duty  to  keep  the  accounts  of  the  state  with  any  state 
or  territory,  and  with  the  United  States,  with  all  public  officers,  cor- 
porations, and  individuals  having  accounts  with  this  state,  and  to 
audit  all  accounts  of  public  officers,  who  are  to  be  paid  out  of  the 
state  treasury,  of  the  members  of  the  legislature,  and  all  persons 
authorized  to  receive  money  out  of  the  treasury,  by  virtue  of  any 
appropriation  made  by  law  particularly  authorizing  such  account. 
On  ascertaining  the  amount  due  any  person  from  the  treasury  he  is 
directed  to  issue  his  warrant  on  the  treasury  for  the  sum  due,  and 
he  must  keep  a record  of  all  warrants  drawn  by  him,  numbering 
them,  in  a book  to  be  kept  for  this  purpose.  He  must  personally 


641 


sign  all  warrants  for  money  on  the  treasury  of  the  state  and  all 
other  papers  necessary  and  proper  for  the  auditor  to  sign.  He  is 
required  to  keep  a correct  record  of  all  accounts  audited  by  him, 
and  an  account  of  all  taxes  or  other  money,  which  may  be  due  by  any 
person  to  the  state,  and  an  account  of  all  amounts  which  may  be  paid 
into  the  state  treasury. 

The  above  provisions  deal  with  the  auditor  as  an  administrative 
officer  in  charge  of  the  accounting  system  of  the  entire  state  admini- 
stration. He  has  also  numerous  functions  in  connection  with  the 
supervision  of  corporations.  He  has  charge  of  the  regulation  of  state 
banks,  trust  companies,  building  and  loan  associations,  wage  lqan 
corporations,-  mortgage  loan  corporations,  pawners’  societies  and 
title  guarantee  companies.  Under  a banking  law  enacted  in  1919, 
which  under  the  constitution  is  subject  to  a referendum,  his  powers 
of  supervision  over  banks  will  be  increased.  Bank  examiners,  and 
examiners  of  building  and  loan  associations  in  this  office  are  exempt 
from  civil  service. 

The  auditor  is  ex-officio  a member  of  the  state  canvassing  board 
and  of  the  tax  levy  board. 

The  auditor  receives  a salary  of  $7,500  and  is  required  to  give 
bond  to  be  approved  by  the  Governor  and  two  justices  of  the  Su- 
preme Court  in  the  sum  of  $50,000.  If  the  Governor  deems  any  bond 
filed  by  the  auditor  insufficient,  he  may  require  additional  bond  not 
exceeding  $50,000.  Whenever  any  condition  of  the  bond  is  broken, 
it  is  the  duty  of  the  Governor  to  order  prosecution. 

The  auditor  is  directed  to  credit  the  treasurer’s  account  with 
the  amount  of  cancelled  warrants  returned  to  him  monthly,  by  the 
treasurer  and  give  him  a receipt  for  the  same,  and  enter  the  date 
of  .cancellation  of  such  warrants  in  his  warrant  book.  He  must 
countersign  all  receipts  for  moneys  issued  by  the  treasurer,  and 
charge  the  treasurer  with  the  amount  of  the  receipts.  No  person 
may  be  employed  as  a clerk  in  the  auditor’s  office  who  is  at  the  same 
time  employed  in  any  capacity  in  the  treasurer’s  office. 

The  treasurer  is  required  to  open  the  proposals  for  the  deposit 
of  state  moneys,  in  the  presence  of  the  auditor  and  the  director  of 
finance.  The  secretary  of  state  is  directed  to  deposit  his  bond  in  the 
office  of  the  auditor. 

The  auditor  has  the  right  to  examine  all  the  books,'  documents, 
memoranda,  and  records  of  every  department  of  state  government 
receiving  money  which  is  required  to  be  paid  into  the  state  treasury,, 
in  order  to  verify  the  accuracy  of  the  accounts. 

The  civil  service  commission  is  directed  to  certify  to  the  auditor 
all  appointments  to  offices  and  places  in  the  civil  service  and 
all  vacancies  occurring  by  dismissal,  resignation  or  death.  The 
auditor  is  only  permitted  to  draw  his  warrant  on  the  treasurer  for 
the  payment  of  the  salary  or  compensation  of  any  person  in  the 
classified  service  upon  the  certification  of  the  civil  service  commis- 
sion that  the  payment  is  in  accordance  with  the  civil  service  law 
and  rules. 


642 


The  county  superintendents  of  schools  are  required  to  report  the 
sale  of  township  school  lands  to  the  auditor  and  the  auditor  is  em- 
powered to  issue  patents  for  such  lands. 

The  auditor  is  required  to  keep  a record  of  the  names  and 
boundaries  of  the  several  townships  organized  in  counties  through- 
out the  state.  In  order  to  make  up  this  record,  the  county  clerks 
are  required  to  forward  the  auditor  an  abstract  of  the  report  of  the 
commissioners  appointed  to  divide  the  county  into  towns. 

The  bonds  of  county  collectors  of  taxes,  if  found  to  be  in  con- 
formity with  the  law  by  the  auditor,  must  be  filed  in  his  office  anrd 
the  fact  thereof  certified  to  the  county  clerk  by  him.  Upon  the 
settlement  of  the  account  for  taxes  with  the  state,  the  auditor  must 
furnish  the  county  collector  with  a duplicate  certificate  to  that  effect. 
The  county  collector  is  required  to  file  one  of  these  certificates  in 
the  office  of  the  county  clerk.  Inheritance  taxes  are  collected  by 
the  county  treasurers  under  the  supervision  of  the  attorney  general 
and  are  paid  into  the  state  treasury  through  the  office  of  the  state 
auditor.  An  order  is  issued  by  the  auditor  directing  the  state  treas- 
urer to  receive  the  money. 

The  county  clerks  of  the  several  counties  in  the  state  are  re- 
quired to  report  to  the  auditor  a list  of  the  swamp  and  overflowed 
lands  sold  in  their  respective  counties  for  the  year  ending  May  first, 
and  the  auditor  must  enter  the  same  in  the  tract  books  in  his  office. 

The  auditor  of  public  accounts  has  been  designated  as  the  custo- 
dian of  all  transcripts,  documents  and  records  pertaining  to  the 
United  States  Land  Office,  formerly  located  at  Springfield,  Illinois, 
which  were  transferred  to  the  state  of  Illinois,  by  the  secretary  of 
the  interior,  in  accordance  with  an  act  of  congress  approved  July  31, 
1876. 


Treasurer.  The  Constitution  of  1818  provided  that  the  state 
treasurer  should  be  appointed  biennially  by  the  joint  vote  of  both 
branches  of  the  General  Assembly.  He  was  made  a popularly  elective 
officer  with  a term  of  two  years  by  the  constitution  of  1848.  The  provi- 
sions that  he  should  be  ineligible  to  the  office  of  state  treasurer  for  two 
years  next  after  the  end  of  the  term  for  which  he  was  elected,  was 
added  by  the  Constitution  of  1870,  and  this  constitution  further  pro- 
vided that  he  might  be  required  by  the  Governor  to  give  reasonable  ad- 
ditional security,  and  in  default  of  so  doing  his  office  should  be  de- 
clared vacant.  The  treasurer  is  the  only  officer  of  the  executive  de- 
partment of  the  state  that  the  constitution  does  not  expressly  pro- 
hibit from  holding  other  public  office  during  the  term  for  which  he 
is  elected. 

All  taxes  levied  for  state  purposes  are  required  by  the  constitu- 
tion to  be  paid  into  the  state  treasury  and  no  money  may  be  drawn 
from  the  treasury  except  in  pursuance  of  an  appropriation  made 
by  law  and  on  presentation  of  a warrant  issued  by  the  auditor 
thereon. 


643 


Statutory  Powers  and  Duties.  It  is  the  duty  of  the  state  treas- 
urer to  receive  the  revenues  and  all  other  public  moneys  of 
the  state,  and  all  moneys  authorized  by  law  to  be  paid  to  him,  and  safely 
keep  the  same.  He  is  required  to  keep  an  official  seal  to  authenticate 
all  writings,  papers  and  documents  required  by  law  to  be  certified  from 
his  office. 

He  is  required  to  deposit  all  moneys  received  by  him  on  account 
of  the  state  within  five  days  after  receipt  in  such  banks  as  he  may, 
according  to  law,  designate  as  state  depositaries.  All  interest  re- 
ceived on  such  moneys  is  the  property  of  the  state  of  Illinois  and 
the  treasurer  is  required  to  advertise  for  proposals  for  the  deposit  of 
state  moneys. 

The  treasurer  may  not  pay  any  salary  or  wages  for  services  as 
an  officer  or  employe  in  the  classified  service  of  the  state  unless  the 
person  is  employed  in  accordance  with  the  provisions  of  the  civil 
service  act. 

He  is  ex-officio  a member  of  the  state  canvassing  board,  the 
primary  canvassing  board,  and  the  tax  levy  board,  and  ex-officio 
treasurer  of  the  board  of  trustees  of  the  teachers’  pension  and  retire- 
ment fund. 

The  treasurer  receives  a salary  of  $10,000  and  is  required  to 
furnish  a bond  of  $500,000  to  be  approved  by  the  Governor,  and 
two  justices  of  the  Supreme  Court.  If  the  Governor  deems  the  bond 
of  the  state  treasurer  insufficient,  he  may  require  additional  bond 
not  to  exceed  $500,000.  Whenever  the  condition  of  the  bond  of  the 
treasurer  is  broken,  it  is  the  duty  of  the  Governor  to  order  prosecution. 

All  persons  paying  money  into  the  state  treasury  are  required  to 
obtain  an  order  from  the  auditor  directing  the  treasurer  to  receive 
such  moneys,  and  the  treasurer  may  not  pay  out  of  the  treasury  any 
money  except  upon  the  warrant  of  the  auditor.  The  treasurer  is 
required  to  keep  regular  and  fair  accounts  of  all  moneys  received 
and  paid  out  by  him,  stating  particularly  on  what  account  each 
amount  is  received  or  paid  out.  At  the  close  of  each  month,  he 
reports  to  the  auditor  the  amount  of  money  received  and  paid  out 
by  him  during  the  month  and  deposits  with  the  auditor  all  warrants, 
properly  cancelled,  which  he  may  have  paid,  and  takes  the  auditor’s 
receipt  for  the  cancelled  warrants.  He  is  required  to  make  a bien- 
nial report  to  the  Governor.  No  person  may  be  employed  as  clerk 
in  the  auditor’s  office  who  is  employed  in  any  capacity  in  the  treas- 
urer’s office. 

Within  ten  days  after  the  receipt  of  the  proposals  for  the  de- 
posit of  state  moneys,  the  treasurer  is  required  to  open  them  in  the 
presence  of  the  auditor  of  public  accounts  and  the  director  of  finance. 
He  is  empowered  to  make  the  awards  himself. 

With  a few  exceptions  the  fees  collected  by  state  boards,  com- 
missions, institutions,  departments  and  offices  are  required  to  be  paid 
into  the  state  treasury. 

With  the  consent  of  the  attorney  general,  the  treasurer  is  em- 
powered to  enter  into  agreements  concerning  inheritance  taxes,  in 
certain  estates  involving  remainders  or  estates  in  expectancy,  such 
agreement  to  be  in  the  form  of  a composition  or  settlement  of  taxes. 


644 


The  treasurer  and  the  secretary  of  state  are  authorized  and  re- 
quired to  employ  watchmen  to  guard  and  preserve,  from  fire  the  public 
buildings  in  Springfield.  These  watchmen  are  exempt  from  the 
provisions  of  the  civil  service  act. 

The  administrative  officers,  boards,  commissions  or  offices  of  the 
various  schools  or  institutions  coming  under  the  provisions  of  the 
state  institution  teachers’  pension  and  retirement  fund  act,  are  di- 
rected to  transmit  quarterly  to  the  state  treasurer  the  sums  retained 
from  teachers’  salaries  in  accordance  with  the  act  and  to  make  an 
annual  statement  to  him  within  seven  days  after  the  thirtieth  day 
of  June  of  each  year,  of  all  moneys  so  retained. 

The  board  of  directors,  boards  of  education  or  other  governing 
body  of  the  public  school  in  each  district  coming  under  the  provi- 
sions of  the  teachers’  pension  and  retirement  fund  act  are  required 
to  forward  to  the  state  treasurer  within  seven  days  after  June  30, 
a satement  of  all  moneys  retained  from  teachers’  salaries  in  accord- 
ance with  the  provisions  of  the  act,  together  with  such  moneys,  or  a 
statement  that  no  teacher  in  that  district  comes  under  the  provisions 
of  the  act. 

County  collectors  of  taxes  are  directed,  upon  presentation  to  the 
state  treasurer  of  a statement  from  the  auditor  of  the  exact  amount 
of  taxes  due  to  be  paid  into  the  state  treasury,  to  pay  the  same  to  the 
state  treasurer.  In  connection  with  the  administration  of  the  inher- 
itance tax,  the  treasurer  is  directed  to  furnish  each  county  judge 
with  a book  in  which  to  enter  inheritance  tax  assessments.  It  is  the 
duty  of  the  county  treasurer  to  pay  to  the  state  treasurer  on  the  first 
day  of  every  month,  all  inheritance  taxes  collected  by  him. 

The  receipts  from  the  sale  of  land  belonging  to  aliens,  where 
they  have  failed  to  become  naturalized  after  the  required  length  of 
time,  are  to  be  delivered  by  the  clerk  of  the  county  court  to  the 
state  treasurer. 

Before  constitutional  prohibitions  were  imposed,  various  munici- 
pal corporations  of  the  state  had  issued  bonds  in  aid  of  such  local 
improvements  as  the  bulding  of  railroads  and  other  public  utilities. 
These  bonds  are  secured  by  special  taxes,  which  have  accumulated 
in  the  state  treasury  and  the  treasurer  is  charged  with  the  payment 
of  the  coupons  on  these  bonds  semi-annually. 

The  state  treasurer  has  been  designated  by  various  acts  of  con- 
gress, supplemented  by  the  necessary  state  laws,  as  the  custodian 
of  certain  moneys  distributed  by  congress  to  the  states  for  various 
purposes.  These  funds  are  : 

(1)  Support  of  disabled  soldiers  and  sailors  (1888). 

(2)  The  promotion  of  vocational  education  (1919). 

(3)  Federal  aid  roads  act  (1916). 

(4)  Treatment  and  prevention  of  venereal  diseases  (1918). 

(5)  For  the  benefit  of  the  University  of  Illinois  under 

(a)  An  act  concerning  agricultural  colleges,  approved 
July  2,  1862. 

(b)  An  act  to  apply  a portion  of  the  proceeds  of  the 
public  lands,  approved  August  30,  1890. 


(c)  An  Act  making  appropriations  for  the  Department  of 
Agriculture  for  the  fiscal  year  ending  June  30,  1008, 
approved  March  4,  1907. 


Superintendent  of  Public  Instruction.  The  Constitution  of  1870 
provides  for  the  election  of  a superintendent  of  public  instruction 
for  a term  of  four  years.  This  election  is  held  midway 
between  the  elections  for  Governor  and  the  principal  officers 
of  the  executive  department.  The  Constitution  of  1818  contained 
no  specific  mention  of  education  and  the  Constitution  of  1848 
had  only  a brief  reference  to  it  in  connection  with  taxation.  The 
office  of  state  superintendent  of  common  schools  had,  however,  been 
created  by  statute  in  1845.  The  secretary  of  state  held  this  office 
ex-officio.  The  office  of  state  superintendent  of  public  instruction 
was  created  by  statute  in  1854  as  a separate  elective  office,  with  a 
term  of  office  of  two  years.  The  proposed  Constitution  of  1862  made 
the  superintendent  of  public  instruction  an  elective  state  officer  but 
he  was  the  only  constitutional  state  officer  not  enumerated  among 
the  officers  comprising  the  executive  department.  The  Constitution 
of  1870  lengthened  the  term  to  four  years  and  by  the  provision  for 
the  election  at  a time  other  than  the  general  election  for  state  offi- 
cers indicated  a recognition  of  the  desirability  of  keeping  the  office 
as  far  as  possible  out  of  politics. 

Statutory  Powers  and  Duties.  The  Constitution  of  1870  says 
that  “The  General  Assembly  shall  provide  a thorough  and 
efficient  system  of  free  schools  whereby  all  children  of  this  state  may 
receive  a good  common  school  education/’  In  accordance  with  this 
provision  many  statutes  have  been  enacted,  and  the  superintendent 
of  public  instruction  has  been  generally  charged  with  the  administra- 
tion of  these  laws.  He  is  empowered  to  supervise  all  of  the  common 
and  public  schools  of  the  state,  and  to  make  rules  and  regulations 
for  carrying  into  effect  the  provisions  of  the  school  law.  He  is  em- 
powered to  examine  teachers,  grant  and  revoke  certificates,  and  recog- 
nize those  from  other  states.  Publishers  of  textbooks  are  required 
to  file  copies  of  their  books  and  price  lists  with  the  superintendent 
of  public  instruction  and  he  issues  a list  of  textbooks  filed  with  him, 
for  the  use  of  school  directors. 

He  is  ex-officio  secretary  of  the  normal  school  board,  executive 
officer  of  the  board  for  vocational  education,  president  of  the  board 
of  trustees  of  the  Illinois  teachers’  pension  and  retirement  fund,  a 
member  of  the  board  of  commissioners  of  the  state  library,  of  the 
trustees  of  the  University  of  Illinois,  and  of  the  farmers’  institute. 
He  is  ex-offi'cio  chairman  of  the  teachers’  examining  board  and  ap- 
points one  member  for  a four-year  term.  He  appoints  the  other 
three  members,  county  superintendents,  each  to  serve  three  years,  one 
to  be  appointed  annually  upon  the  recommendation  of  the  county 
superintendents  section  of  the  state  teachers’  association  at  its  annual 
meeting. 


646 


The  superintendent  of  public  instruction  receives  a salary  of 
$7,500  and  is  required  to  give  bond  in  the  penal  sum  of  $25,000. 

The  superintendent  of  public  instruction  is  required  to  transmit  to 
the  Governor  biennially  a report  containing  various  statistics  con- 
cerning school  attendance,  administration  and  finance.  This  report  is 
transmitted  to  the  General  Assembly  at  the  beginning  of  each  regular 
session.  He  has  supervision  over  the  distribution  of  school  funds, 
and  may  require  the  withholding  from  a county  superintendent  of  the 
amount  due  him  for  his  compensation  or  due  to  his  county,  from  the 
state  school  fund  until  the  required  information  concerning  schools  has 
been  sent  to  the  state  superintendent.  Appeals  may  be  taken  to  the 
courts  from  the  decision  of  the  state  superintendent. 

It  is  the  duty  of  the  superintendent  of  public  instruction  to  visit 
such  of  the  state  institutions  as  are  educational  in  character  and  to 
examine  their  facilities  for  instruction.  The  superintendents  of  these 
institutions  are  required  to  make  reports  to  him  on  matters  relating 
to  their  institutions  at  such  times  and  in  such  form  as  he  may  pre- 
scribe. 

It  is  his  duty  to  confer  with  the  state  board  of  health,  state  archi- 
tect, and  state  fire  marshal,  and  to  prepare  specifications  for  the  mini- 
mum requirements  for  heating,  ventilation,  lighting,  sanitation,  and 
safety  against  fire,  which  will  conserve  the  health  and  safety  of  the 
children  attending  the  public  schools. 

It  is  the  duty  of  the  superintendent  of  public  instruction  to  des- 
ignate the  statistics  which  school  officers  are  required  to  report  to  the 
county  superintendent,  to  authorize  county  superintendents  to  procure 
necessary  assistance  to  conduct  teachers’  institutes,  to  require  reports 
from  county  superintendents,  township  trustees,  and  authorities  of 
townships,  cities  or  districts  maintaining  schools  under  special  char- 
ters, and  advise  county  superintendents  as  to  the  best  manner  of  con- 
ducting schools,  constructing  and  furnishing  school  houses,  and  exam- 
ining and  procuring  competent  teachers.  He  is  the  legal  adviser  of 
school  officers  and  it  is  his  duty,  upon  request  of  any  school  officer,  to 
give  his  opinion  in  writing  upon  any  question  arising  under  the  school 
laws  of  the  state. 

He  is  given  the  power  to  determine  all  controversies  arising  under 
the  school  laws,  coming  to  him  by  appeal  from  county  superintend- 
ents. County  superintendents  of  schools  are  required  to  mail  copies 
of  all  bonds  of  township  treasurers  approved  by  them  to  the  superin- 
tendent of  public  instruction,  said  copies  to  be  filed  in  his  office. 


Attorney  General.  The  Constitution  of  1818  provided  for  the 
appointment  by  the  General  Assembly,  of  an  attorney  general,  whose 
duties  should  be  regulated  by  law.  In  accordance  with  this  provision, 
the  first  legislature  in  1819  prescribed  the  duties  of  the  attorney  general 
and  provided  that  he  be  elected  by  the  General  Assembly  for  a term  of 
two  years.  The  Constitution  of  1848  contained  no  mention  of  the  at- 
torney general  and  the  office  was  discontinued.  By  statue,  in  1867,  it 


64? 


was  again  created,  to  be  filled  first  by  appointment  by  the  Governor 
for  a term  of  two  years,  and  afterwards  to  be  an  elective  office. 
Under  the  Constitution  of  1870  the  attorney  general  is  named  as 
one  of  the  officers  of  the  executive  department,  elected  by  popular 
vote  for  a term  of  four  years.  The  constitution  confers  no  express 
powers  upon  the  attorney  general  and  prescribes  no  express  duties 
for  him  to  perform.  It  simply  provides  that  he  shall  perform  such 
duties  as  may  be  prescribed  by  law. 

The  Supreme  Court  of  this  state,  has,  however,  construed  the 
constitutional  provisions  so  as  to  invest  the  office  with  all  the  com- 
mon law  powers  and  duties  of  the  Attorney  General.  In  Fergus 
vs.  Russel,  270  111.,  304,  342  (1915),  it  says: 

“By  our  constitution  we  created  this  office  by  the  common  law 
designation  of  Attorney  General  and  thus  impressed  it  with  all 
its  common  law  powers  and  duties.  As  the  office  of  Attorney  Gen- 
eral is  the  only  office  at  common  law  which  is  thus  created  by  our 
constitution  the  Attorney  General  is  the  chief  law  officer  of  the 
state,  and  the  only  officer  empowered  to  represent  the  people  in 
any  suit  or  proceeding  in  which  the  state  is  the  real  party  in  inter- 
est, except  where  the  constitution  or  a constitutional  statute,  may 
provide  otherwise.” 

Statutory  Powers  and  Duties.  The  duties  of  the  attorney  gen- 
eral are : 

To  appear  for  and  represent  the  people  of  the  state  before  the 
Supreme  Court,  in  all  cases  in  which  the  state  or  the  people  of  the 
state  are  interested. 

To  prepare,  when  necessary,  proper  drafts  for  contracts  and 
other  writings  relating  to  subjects  in  which  the  state  is  interested. 

To  enforce  the  proper  application  of  funds  appropriated  to  the 
public  institutions  of  the  state,  prosecute  breaches  of  trust  in  the 
administration  of  such  funds,  and  when  necessary,  prosecute  cor- 
porations for  failure  or  refusal  to  make  the  reports  required  by  law. 

To  keep  in  proper  books,  a register  of  all  cases  prosecuted  or 
defended  by  him,  in  behalf  of  the  state  and  its  officers,  and  a record 
of  all  official  opinions  given  by  him  during  his  term  of  office,  and  to 
deliver  the  same  to  his  successor  in  office. 

To  file  an  information  in  the  nature  of  a quo  warranto  against  any 
person  holding  office  illegally  and  against  any  corporation  holding 
or  exercising  any  franchise  or  license  in  violation  of  law. 

To  appear  for  and  represent  the  interests  of  the  state  in  all 
matters  before  the  court  of  claims. 

To  institute  prosecutions  for  violations  of  the  civil  service 
laws;  to  appear  against  trust  companies  which  administer  estates 
in  cases  of  violations  of  the  law ; to  prosecute  pawners  societies 
carrying  on  business  illegally ; and  to  institute  proceedings  against 
foreign  and  domestic  corporations  in  certain  cases.  (There  are  a 
large  number  of  other  statutes  which  provide  specifically  for  action 
by  the  attorney  general  for  their  enforcement.) 

To  examine  the  title  of  land  in  the  improvement  of  which  pub- 
lic money  is  proposed  to  be  spent.  His  approval  of  the  title  of  the 


648 


land  is  necessary  before  any  money  can  be  legally  expended  in  such 
improvements. 

To  exercise  general  supervision  over  the  assessment  and  col- 
lection of  the  inheritance  tax,  with  authority  to  apply  to  the  county 
court  for  the  appointment  of  appraisers,  and  to  appeal  from  any  ap- 
praisement and  assessment. 

The  attorney  general  is  ex-officio  a member  of  the  state  canvassing 
board.  Regular  and  special  assistants,  law  clerks,  special  investi- 
gators and  special  attorneys  in  the  attorneys  general’s  office  are 
exempt  from  civil  service. 

The  attorney  general  receives  a salary  of  $10,000  per  annum. 
Before  entering  on  the  duties  of  his  office,  he  is  commissioned  by 
the  Governor,  and  must  execute  a bond  for  $10,000  for  the  faithful 
discharge  of  the  duties  of  his  office.  The  attorney  general  must 
give  a bond  approved  by  the  Governor  and  whenever  the  Governor 
shall  deem  any  bond  filed  by  the  attorney  general  insufficient,  he 
may  require  additional  bond  of  not  exceeding  $10,000. 

It  is  the  duty  of  the  attorney  general  to  institute  and  prosecute 
all  proceedings  in  favor  of  or  for  the  use  of  the  state,  which  may  be 
necessary  in  the  execution  of  the  duties  of  any  state  officer;  to  consult 
with  and  advise  the  Governor  and  other  state  officers,  and  give  when 
requested  written  opinions  upon  all  legal  or  constitutional  questions 
relating  to  the  duties  of  such  officers ; to  give  written  opinions,  when 
requested  by  either  branch  of  the  General  Assembly  or  any  of  its 
committees,  upon  any  legal  or  constitutional  question. 

The  by-laws  of  building  and  loan  associations  must  be  submitted 
to  him  and  approved  by  him  before  the  auditor  can  issue  a certificate 
of  organization.  The  attorney  general  must  certify  the  declaration  of 
corporators  of  life  insurance  companies  as  legal  and  sufficient  before 
the  insurance  superintendent  can  give  the  company  a permit  to  do 
business  in  this  state.  A number  of  other  statutes  make  his  ap- 
proval necessary  in  certain  cases. 

The  department  of  finance  is  required  to  report  to  the  attorney 
general  for  such  action  as  the  attorney  general  may  deem  necessary, 
all  facts  showing  illegal  expenditures  of  public  money  or  misappropria- 
tion of  the  public  property. 

The  approval  of  the  attorney  general  is  necessary  to  all  agree- 
ments made  by  the  state  treasurer  for  a composition  or  settlement  of 
inheritance  taxes  in  estates  in  expectancy  or  estates  involving  re- 
mainders. 

It  is  the  duty  of  the  attorney  general  to  consult  with  and  advise 
the  several  state’s  attorneys  in  matters  relating  to  the  duties  of  their 
office;  and,  when  in  his  judgment,  the  interest  of  the  people  of  the 
state  require  it,  he  may  attend  the  trial  of  any  party  accused  of  crime 
and  assist  in  the  prosecution.  It  is  the  duty  of  the  state’s  attorney 
whenever  it  may  be  necessary,  and  in  cases  of  appeal  or  writ  of  error 
from  his  county  to  the  Supreme  Court,  which  it  is  the  duty  of  the 
attorney  general  to  attend,  to  furnish  the  attorney  general  with  a brief, 
showing  the  nature  of  the  case  and  the  questions  involved,  a reasonable 
time  before  the  trial  of  such  appeal  or  writ  of  error. 


649 


In  cases  of  appeals  to  the  county  court  concerning  appraisements 
in  inheritance  tax  matters,  it  is  the  duty  of  the  county  clerk  to  notify 
the  attorney  general  and  later  to  send  him  a certified  copy  of  the  judg- 
ment in  the  cause.  It  is  the  duty  of  the  state’s  attorney  to  render 
assistance  to  the  attorney  general  in  the  institution  and  prosecution  of 
suits  concerning  inheritance  taxes,  when  requested  to  do  so.  The  county 
treasurer  is  required  to  send  the  attorney  general  a quarterly  statement 
of  all  inheritance  taxes  due  and  unpaid. 


650 


IV.  DESCRIPTION  OF  THE  FUNCTIONS  OF  DEPART- 
MENTS UNDER  THE  CIVIL  ADMINISTRATIVE  CODE. 


General.  The  Civil  Administrative  Code  was  enacted  by  the 
General  Assembly  in  1917  and  went  into  effect  July  first  of  that 
year.  It  reorganized  and  consolidated  fifty  or  more  functions  and 
departments,  previously  existing  independently  of  each  other,  into 
nine  departments,  with  a director  appointed  by  the  governor  with 
the  advice  and  consent  of  the  senate  for  a term  of  four  years,  at  the 
head  of  each  department.  Several  administrative  and  unpaid  ad- 
visory boards  were  created  in  the  various  departments. 

It  is  the  duty  of  the  advisory  boards  to  consider  and  study  the 
entire  field  of  their  work ; to  advise  the  executive  officers  of  their 
departments  upon  the  request  of  such  officers ; to  recommend  on 
their  own  initiative,  policies  and  practices,  which  recommendations 
the  executive  officers  of  the  department  are  directed  to  con- 
sider, and  give  advice  or  make  recommendations  to  the  Governor 
and  the  General  Assembly  when  so  requested,  or  on  their  own 
initiative.  The  advisory  boards  have  the  power  to  investigate  the 
conduct  of  the  work  of  the  departments  with  which  they  are  asso- 
ciated. Such  boards  must  hold  meetings  not  less  frequently  than 
quarterly,  and  the  director  of  the  department  and  the  Governor  may 
be  present  and  be  heard  upon  any  matter  coming  before  the  board. 
Members  of  such  boards  receive  no  compensation. 

One  private  secretary  for  each  director  is  exempt  from  the  classi- 
fied civil  service  of  the  state.  The  salaries  of  the  directors  vary  from 
$5,000  to  $7,000  per  annum  and  are  payable  monthly.  Each  officer, 
whose  office  is  created  by  the  code  is  required  to  take  and  subscribe 
the  constitutional  oath  of  office,  which  oath  must  be  filed  in  the  office 
of  the  secretary  of  state.  Each  executive  and  administrative  officer, 
whose  office  is  created  by  the  code,  is  requried  to  give  a bond  with 
security  to  be  approved  by  the  Governor,  in  such  penal  sum  as  the 
Governor  may  fix,  not  less  than  $10,000,  which  bond  is  to  be  filed  in  the 
office  of  the  secretary  of  state.  Annually,  on  or  before  the  first  day  of 
December,  and  at  such  other  times  as  the  Governor  may  require,  the 
dirctors  of  the  departments  are  required  to  report  to  the  Governor 
in  writing  concerning  the  condition,  management  and  financial  trans- 
actions of  their  respective  departments.  In  addition  to  such  reports, 
each  director  of  a department  is  required  to  make  the  semi-annual 
and  biennial  reports  required  by  the  constitution. 

The  directors  of  departments  are  directed  to  devise  a practical 
and  working  basis  for  co-operation  and  co-ordination  of  work,  elimin- 
ating duplication  and  overlapping  of  functions.  Whenever  power  is 
vested  by  the  code  in  a department  to  inspect,  examine,  secure  data  or 


651 


information  or  procure  assistance  from  another  department,  a duty  is 
imposed  upon  the  department  upon  which  the  demand  is  made,  to  make 
such  power  effective. 

Under  the  power  given  to  the  director  of  each  department  to  make 
rules  and  regulations  for  the  distribution  and  performance  of  its 
business,  each  department  has  been  organized  into  yarious  “divisions.” 
The  names  of  these  divisions  may  be  ascertained  by  consulting  the 
appropriation  acts  and  they  are  also  listed  later  in  this  chapter  under 
the  discussion  of  the  functions  of  each  department.  These  divisions 


follow  quite  closely  the  officers  and  board  expressly  designated  in  the 


statute. 


1W 


The  code  provides  for  an  assistant  director  in  each  department 
and  the  follownig  outline  shows  the  other  officers,  boards  and  depart- 
ments expressly  designated  and  provided  for  in  the  organization  pre- 
scribed by  the  statute. 

Department  of  Finance : 

Administrative  auditor. 

Superintendent  of  budget. 

Superintendent  of  department  reports. 

Tax  commission  (established  in  1919). 

Department  of  Agriculture: 

General  manager  of  the  state  fair. 

Superintendent  of  foods  and  dairies. 

Superintendent  of  animal  industry. 

Superintendent  of  plant  industry. 

Chief  veterinarian. 

Chief  game  and  fish  warden. 

Food  standard  commission. 

Board  of  agricultural  advisers. 

Board  of  state  fair  advisers.  * 

Department  of  Labor : 

Chief  factory  inspector. 

Superintendent  of  free  employment  offices. 

Industrial  commission. 

Board  of  Illinois  free  employment  office  advisers. 

Board  of  local  Illinois  free  employment  office  advisers  for  each 
free  employment  office. 

Department  of  Mines  and  Minerals : 

Mining  board. 

Miners’  examining  board. 

Department  of  Public  Works  and  Buildings : 

Superintendent  of  highways. 

Chief  highway  engineer. 

Supervising  architect. 

Supervising  engineer. 

Superintendent  of  waterways. 

Superintendent  of  printing. 

Superintendent  of  purchases  and  supplies. 

Superintendent  of  parks. 

Board  of  art  advisers. 


652 


Board  of  water  resource  advisers. 

Board  of  highway  advisers. 

Board  of  parks  and  buildings  advisers. 

Department  of  Public  Welfare: 

Alienist. 

Criminologist. 

Fiscal  supervisor. 

Supervisor  of  charities. 

Superintendent  of  prisons. 

Superintendent  of  pardons  and  paroles. 

Board  of  public  welfare  commissioners. 

Department  of  Public  Health : 

Superintendent  of  lodging  house  inspection. 

Board  of  public  health  advisers. 

Department  of  Trade  and  Commerce: 

Superintendent  of  insurance. 

Fire  marshal. 

Superintendent  of  standards. 

Chief  grain  inspector. 

Public  utilities  commission. 

Department  of  Registration  and  Education : 

Superintendent  of  registration. 

Normal  school  board. 

Board  of  natural  resources  and  conservation  advisers. 

Board  of  state  museum  advisers. 

Immigrants  commission. 

All  of  these  officers,  boards  and  commissions  are  appointed  by  the 
governor  with  the  advice  and  consent  of  the  senate.  The  miners’  ex- 
amining board,  the  industrial  commission,  the  public  utilities  commis- 
sion, the  normal  school  board  and  the  tax  commission  are  included 
in  this  organization,  but  these  boards  and  commissions  perform  their 
duties  without  any  direction,  supervision  or  control,  by  the  directors  of 
their  respective  departments. 


Department  of  Finance.  The  function  of  the  department  of 
finance  is  to  provide  a centralized  control  of  expenditures  of  all  de- 
partments responsible  to  the  Governor,  and  to  prepare  a state  budget. 
It  has  the  power  to  prescribe  a uniform  system  of  bookkeeping,  ac- 
counting and  reporting  for  the  several  departments  under  the  Civil 
Administrative  Code,  to  examine  into  the  accuracy  and  legality  of  their 
accounts  and  expenditures,  and  to  examine  the  accounts  of  every  pri- 
vate corporation,  institution,  association  or  board  receiving  appropria- 
tions from  the  General  Assembly.  It  also  has  power  to  prescribe 
uniform  rules  concerning  the  purchase  of  supplies.  It  is  required  to  re- 
port to  the  attorney  general  for  such  action  as  he  may  deem  necessary, 
all  facts  showing  illegal  expenditures  of  public  money  or  misappropria- 
tion of  public  property.  No  voucher,  bill  or  claim,  of  any  department 
under  the  Civil  Administrative  Code  may  be  allowed  without  its  ap- 


653 


proval  and  certificate.  It  examines  and  approves  all  vouchers,  bills  and 
claims  of  the  several  departments  and  such  as  are  by  law  made  subject 
to  the  approval  of  the  Governor  and  referred  to  it  by  the  Governor.  It 
may  publish,  from  time  to  time,  bulletins  of  the  work  of  government. 
It  may  investigate  duplication  of  work  of  the  departments,  and  their 
efficiency,  and  formulate  plans  for  their  better  co-ordination. 

For  the  preparation  of  the  state  budget,  the  director  of  finance, 
not  later  than  September  15  of  the  year  preceding  the  convening  of  the 
General  Assembly,  distributes  to  all  departments  of  the  state  govern- 
ment,  including  the  judicial  department,  the  University  of  Illinois 
and  the  elective  officers  of  the  executive  department,  the  proper  blanks 
necessary  for  the  preparation  of  the  budget  estimates.  Not  later  than 
the  first  day  of  November  each  department  must  return  these  blanks 
showing  its  estimates  of  receipts  and  expenditures  for  the  next  bi- 
ennium. Such  statement  must  be  accompanied  by  a statement  in 
writing  giving  facts  and  explanations  of  reasons  for  each  item  of 
expenditure  requested.  The  director  of  finance  may  make  further  in- 
quiries concerning  any  item,  and  he  may  approve,  disapprove,  or  alter 
the  estimates.  On  or  before  the  first  day  of  January  preceding  the  con- 
vening of  the  General  Assembly,  he  submits  to  the  Governor  in  writing 
the  state  budget,  showing  his  estimates  of  revenues  and  appropriations 
for  the  next  biennium. 

The  code  also  provides  for  an  administrative  auditor,  a superin- 
tendent of  department  reports  and  a superintendent  of  the  budget  in 
this  department. 

In  1919  a tax  commission  was  created  in  the  department  of  finance 
composed  of  three  members,  appointed  by  the  Governor.  Their  term  of 
office  is  six  years.  The  director  of  finance  is  the  secretary  and  execu- 
tive officer  of  the  tax  commission  in  its  clerical  and  administrative 
functions,  but  the  tax  commission  performs  its  duties  in  the  assessment 
of  property  for  taxation  without  any  control  by  the  director  of  finance. 
In  connection  with  its  duties  concerning  the  assessment  of  property 
for  taxation,  this  commission  has  direction  and  supervision  of  “local 
assessment  officers,”  which  term  includes  township  assessors,  boards 
of  assessors,  the  county  treasurer  and  boards  of  review. 


Department  of  Agriculture.  The  function  of  the  department 
of  agriculture  is  to  encourage  and  promote,  in  every  practicable  man- 
ner, the  interest  of  agriculture,  including  horticulture,  the  live  stock  in- 
dustry, dairying,  cheese-making,  poultry,  beekeeping,  forestry,  fishing, 
the  production  of  wool,  and  all  other  allied  industries.  The  depart- 
ment of  agriculture  exercises  the  rights,  powers  and  duties  previously 
vested  by  law  in  the  board  of  live  stock  commissioners  (excepting 
under  the  act  regulating  the  practice  of  veterinary  medicine  and  sur- 
gery), the  state  veterinarian,  the  stallion  registration  board,  state  in- 
spector of  apiaries,  game  and  fish  commission,  food  commissioner,  food 
standard  commission,  and  the  state  entomologist.  This  department 
executes  and  administers  the  act  to  prevent  fraud  in  the  manufacture 
and  sale  of  commercial  fertilizers.  It  collects  and  publishes  statistics 


654 


relating  to  crop  production  and  marketing  of  agricultural  products. 
It  produces  and  manufactures  biological  products  to  be  distributed  to 
live  stock  producers  at  actual  cost,  and  it  is  its  duty  to  inquire  into  the 
causes  of  contagious,  infectious  and  communicable  diseases  among 
domestic  animals  and  means  for  prevention  and  cure.  It  is  the  duty 
of  the  department  of  agriculture  to  encourage  the  planting  of  trees 
and  shrubs  and  the  improvement  of  farm  homes  generally.  It  is  also 
its  duty  to  see  that  live  stock  at  stock  yards,  breweries,  distilleries  and 
other  like  places,  where  live  stock  is  confined,  housed  or  fed,  is  prop- 
erly cared  for. 

In  this  department,  there  is  a board  of  agricultural  advisers  com- 
posed of  fifteen  persons ; a board  of  state  fair  advisers  composed  of 
nine  persons,  not  more  than  three  of  whom  may  be  appointed  from 
any  one  county;  and  a food  standard  commission.  The  superintendent 
of  foods  and  dairies  and  two  officers,  designated  as  food  standard 
officers,  constitute  the  food  standard  commission.  The  code  provides 
for  a general  manager  of  the  state  fair,  a superintendent  of  foods  and 
dairies,  a superintendent  of  animal  industry,  a chief  veterinarian  and  a 
chief  game  and  fish  warden  in  this  department.  For  administrative 
purposes  the  following  “divisions”  have  been  organized : 

General  office. 

Game  and  fish  division. 

Animal  industry  and  veterinary  science  division. 

Apiary  inspection  division. 

Plant  industry  division. 

Foods  and  dairies  division. 

Dairy  extension  division. 

State  fair  division. 

The  department  of  agriculture  is  charged  with  the  administra- 
tion of  the  laws  concerning  the  adulteration  and  inspection  of  food 
products,  the  sale  of  paints  and  compounds,  the  prevention  of  the 
spread  of  contagious  diseases  among  domestic  animals,  and  the  uniform 
cold  storage  act,  the  pure  seed  act  and  the  plant  inspection  act.  It  is 
also  charged  with  the  licensing  of  commission  merchants,  egg  breaking 
establishments,  egg  dealers  and  ice  cream  manufacturers. 

All  regularly  licensed  veterinary  surgeons  employed  by  the  depart- 
ment of  agriculture  are  exempt  from  the  classified  civil  service  of  the 
state. 

The  director  of  agriculture  is  ex-officio  a member  of  the  board  for 
vocational  education,  and  the  farmers’  institute. 

County  assessors  and  deputy  assessors  are  required  to  collect  and 
tabulate  such  agricultural  information  as  may  be  required  by  the  de- 
partment of  agriculture,  at  the  time  provided  by  law  for  the  assessment 
of  property.  Commissioners  of  Canada  thistles  are  required  to  send  a 
report  to  the  director  of  agriculture,  who  must  collect  and  report  the 
same  to  the  Governor  on  or  before  December  first  of  each  year.  The 
department  of  •agriculture  has  general  supervision  of  all  measures 
adopted  for  the  extermination  of  Canada  thistles. 


655 


The  department  of  agriculture  is  charged  with  the  administration 
of  certain  funds  which  the  General  Assembly  appropriates  to  encourage 
the  holding  of  fairs  by  counties  or  agricultural  societies,  and  the  ap- 
propriations made  by  the  state  to  pay  its  share  (which  may  not  exceed 
$100  per  month  each)  of  the  salary  of  county  agricultural  advisers. 

The  department  of  agriculture  is  directed  to  co-operate  with  the 
United  States  Bureau  of  Animal  Industry  in  the  extirpation  of  pleuro- 
pneumonia and  contagious  diseases  among  domestic  animals. 


Department  of  Labor.  The  department  of  labor  is  charged 
with  the  exercise  of  the  powers  and  duties  previously  vested  by  law  in 
the  following  offices,  departments,  boards  and  commissions : the  com- 
missioners of  labor,  the  free  employment  agencies,  the  state  factory 
inspector,  the  state  board  of  arbitration  and  conciliation,  and  the  indus- 
trial board.  Its  function  is  to  foster,  promote  and  develop  the  welfare 
of  wage-earners  through  the  improvement  of  working  conditions,  the 
advancement  of  opportunities  for  profitable  employment,  collection 
of  statistical  information,  and  the  publication  of  reports  relating  to  all 
departments  of  labor,  and  reports  concerning  the  promotion  of  the 
material,  social,  intellectual  and  moral  prosperity  of  laboring  men  and 
women.  The  workmen’s  compensation  act  and  the  arbitration  and 
conciliation  act  are  administered  by  the  industrial  commission  without 
any  direction,  supervision  or  control  by  the  director  of  labor. 

The  code  provides  for  the  appointment  of  a board  of  Illinois  free 
employment  office  advisers,  composed  of  five  persons.  It  also  provides 
for  a board  of  local  free  employment  office  advisers,  for  each  free  em- 
ployment office,  composed  of  five  persons  on  each  local  board.  Em- 
ployment offices  are  located  in  Chicago,  Rockford,  Joliet,  Rock  Island, 
Peoria,  Springfield,  East  St.  Louis,  Bloomington,  Decatur,  Danville 
and  Aurora. 

The  code  also  provides  for  the  appointment  of  a chief  factory 
inspector,  a superintendent  of  free  employment  offices,  a chief  inspector 
of  private  employment  agencies  and  an  industrial  commission,  com- 
posed of  five  officers  designated  as  industrial  officers  and  correspond- 
ing divisions  have  been  organized  in  this  department. 

Among  the  more  important  laws  enforced  by  this  department  are : 
the  child  labor  act,  the  act  regulating  the  hours  of  labor  for  women, 
the  act  for  the  licensing  of  private  employment  agencies,  occupational 
diseases  act,  and  the  health,  safety  and  comfort  of  employes  act. 

It  is  the  duty  of  the  department  of  labor  to  obtain  from  the  de- 
partment of  public  welfare  ninety  days  before  the  discharge  of  an 
inmate  from  any  of  the  penal  or  reformatory  institutions  of  the  state, 
such  information  as  may  aid  in  obtaining  employment  for  such  inmate, 
the  employment  to  be  available  at  the  time  of  discharge. 

The  director  of  the  department  of  labor  is  ex-officio  a member 
of  the  board  for  vocational  education. 


65d 


Department  of  Mines  and  Minerals.  The  function  of  the  de- 
partment of  mines  and  minerals  is  to  promote  the  technical  efficiency 
of  all  persons  working  in  and  about  the  mines  of  the  state  and  to 
assist  them  better  to  overcome  the  difficulties  of  mining.  The  depart- 
ment exercises  the  rights,  powers  and  duties  previously  vested  by  law 
in  the  state  mining  board,  the  state  mine  inspectors,  the  miners’  exam- 
ining commission,  and  the  mine  fire  fighting  and  rescue  station  com- 
mission. It  acquires  and  diffuses  information  concerning  the  nature, 
causes,  and  prevention  of  mine  accidents,  and  the  improvement  of 
methods,  equipment  and  conditions  of  mines,  with  special  reference 
to  health  and  safety,  and  the  conservation  of  mineral  resources.  It 
makes  inquiries  into  the  economic  condition  affecting  the  mining, 
quarrying,  metallurgical,  clay,  oil  and  other  mineral  industries.  To 
further  these  purposes,  it  provides  bulletins,  traveling  libraries,  lec- 
tures, correspondence  work,  classes  for  systematic  instruction,  and 
meetings  for  the  reading  and  discussion  of  papers,  and  to  that  end 
co-operates  with  the  University  of  Illinois. 

The  director  of  mines  and  minerals  and  four  mine  officers, 
appointed  by  the  Governor,  constitute  the  mining  board.  It  is  the 
duty  of  this  board  to  hold  such  meetings  as  may  be  necessary  for  the 
discharge  of  its  duties,  and  to  conduct  examinations  and  pass  upon 
the  practical  and  technical  qualifications  and  personal  fitness  of  all 
persons  employed  as  mine  inspectors,  mine  managers,  mine  examiners, 
and  hoisting  engineers.  The  mining  board  is  required  to  prescribe 
uniform  rules,  conditions,  and  regulations  for  these  examinations,  and 
to  report  to  the  director  of  mines  and  minerals  the  names  of  persons 
qualified  to  act  as  inspectors  of  mines  and  of  those  authorized  to  re- 
ceive certificates  of  competency  as  mine  managers,  mine  examiners, 
and  hoisting  engineers.  It  supervises,  controls,  and  directs  the  state 
mine  inspection  service  and  has  the  power  to  remove  any  inspector 
of  mines,  or  to  cancel  the  certificate  of  any  mine  examiner,  mine  man- 
ager or  hoisting  engineer,  upon  investigation  of  charges. 

The  miners’  examining  board  exercises  all  rights,  powers  and 
duties  exercised  by  the  former  miners’  examining  board  under  an  act 
concerning  the  safety  of  persons  employed  in  coal  mines,  which  pro- 
vides for  the  examination  of  all  persons  seeking  employment  in  coal 
mines.  It  administers  this  act,  in  its  own  name,  without  any  direction, 
supervision  or  control  by  the  director  of  mines  and  minerals,  or  by  the 
mining  board. 

Under  the  department  of  mines  and  minerals  the  following  di- 
visions have  been  organized : 

General  office. 

Inspection. 

Miners’  examination. 

Mine  rescue  and  first  aid. 

Economic  investigation. 

This  department  is  charged  with  the  collection  of  statistics  for, 
and  the  tabulation  and  printing  of,  the  annual  coal  report.  The  state 
is  by  statute  divided  into  twelve  districts  for  inspection  purposes,  and 
one  inspector  is  assigned  to  each  district.  There  are  six  mine  rescue 
stations  in  the  state  under  the  control  of  this  department. 


657 


Upon  the  written  request  of  the  state  inspector  of  mines  for  the 
district  in  which  any  county  is  located,  the  board  of  supervisors  or 
commissioners,  as  the  case  may  be,  is  required  to  appoint  a county 
inspector  of  mines  to  act  as  assistant  to  the  state  inspector  of  mines  and 
work  under  his  supervision. 

Department  of  Public  Works  and  Buildings.  The  department 
of  public  works  and  buildings  has  the  power  to  exercise  all  the  rights, 
powers  and  duties  previously  vested  by  law  in  the  state  highway  de- 
partment, the  canal  commissioners,  the  rivers  and  lakes  commission, 
the  Illinois  waterway  commission,  the  Illinois  park  commission,  Fort 
Massac  trustees,  Lincoln  homestead  trustees,  board  of  commissioners 
of  Lincoln  monument  grounds,  and  the  superintendent  of  printing. 
It  has  extensive  powers  particularly  in  relation  to  the  departments 
under  the  Civil  Administrative  Code.  It  is  empowered  to  make  con- 
tracts for  and  superintend  the  telegraph  and  telephone  service  of  these 
departments,  to  purchase  and  supply  all  fuel,  light,  water,  and  other 
like  office  and  building  services,  all  furniture,  general  office  equipment 
and  general  office  supplies  (except  those  distributed  through  the  office 
of  the  secretary  of  state)  for  the  several  departments  under  the  code ; 
all  clothing,  instruments  and  apparatus,  subsistence  and  provisions  for 
the  charitable,  penal  and  reformatory  institutions  ; and  all  necessary 
tools,  machinery,  supplies  and  materials,  to  be  used  by  the  state  in 
the  construction  of  state  highways.  It  is  further  empowered  to  prepare 
general  plans,  preliminary  sketches,  and  estimates  for  public  buildings 
to  be  erected  by  any  department,  plans  for  the  development  of  grounds 
and  buildings  under  the  control  of  any  department,  and  plans  for  the 
construction  and  perfection  of  all  systems  of  sewerage,  drainage,  and 
plumbing  for  the  state.  It  has  general  supervision  over  the  erection 
and  construction  of  public  buildings  erected  for  any  department,  and 
may  make  contracts  for  and  supervise  the  construction  and  repair  of 
buildings  under  the  control  of  any  department.  It  has  the  power  to 
erect,  supervise,  and  maintain  all  public  buildings  and  memorials  erected 
by  the  state  except  where  other  supervision  and  maintenance  is  pro- 
vided for  by  law.  It  has  power  to  lease  storerooms  and  office  space 
in  buildings  for  the  use  of  the  several  departments  under  the  Civil 
Administrative  Code  and  has  general  supervision  and  care  of  these 
storerooms  and  offices.  It  may  also  lease  unproductive  and  unused 
lands  or  other  property  under  the  control  of  any  department. 

The  code  expressly  designates  and  provides  for  the  appointment  of 
the  following  administrative  officers  in  the  department  of  public  works 
and  buildings : 

Superintendent  of  highways,  chief  highway  engineer,  supervising 
architect,  supervising  engineer,  superintendent  of  waterways,  super- 
intendent of  printing,  superintendent  of  purchases  and  supplies,  and 
superintendent  of  parks. 

In  order  to  aid  in  the  administration  of  its  various  powers,  the 
following  divisions  have  been  organized  in  this  department : 

Highways  division. 

Architecture  division. 


658 


Engineering  division. 

Waterways  division. 

Printing  division. 

Purchases  and  supplies  division. 

Parks  division. 

Four  advisory  and  non-executive  boards  in  the  department  of 
public  works  and  buildings  are  created  by  the  code.  They  are  the 
board  of  art  advisers,  the  board  of  water  resource  advisers,  the  board 
of  highway  advisers,  and  the  board  of  parks  and  buildings  advisers.  It 
is  the  function  of  the  board  of  art  advisers,  which  is  composed  of  eight 
persons,  to  advise  relative  to  the  artistic  character  of  state  buildings, 
works  and  monuments,  and  any  work  of  a permanent  character  in- 
tended for  decoration  or  commemoration.  The  board  of  water  resource 
advisers,  composed  of  five  persons,  advises  relative  to  riparian  rights  of 
the  state,  and  the  conservation,  use  and  development  of  water  resources. 
The  board  of  highway  advisers,  composed  of  five  persons,  advises  rela- 
tive to  the  construction,  improvement  and  maintenance  of  state  high- 
ways. The  board  of  parks  and  buildings  advisers,  composed  of  five 
persons,  advises  relative  to  the  construction,  improvement  and  mainte- 
nance of  state  parks,  buildings  and  monuments. 

The  director  of  public  works  is  authorized,  with  the  consent  in 
writing  of  the  Governor,  to  acquire  by  private  purchase  or  by  con- 
demnation under  the  eminent  domain  act,  the  necessary  lands  for  the 
public  grounds  and  buildings  for  the  departments  under  the  code.  All 
moneys  received  by  him  from  rents,  sales  or  leases  of  property  or  from 
any  other  source  in  connection  with  the  management  of  the  Illinois  and 
Michigan  Canal  must  be  paid  into  the  state  treasury  and  placed  by  the 
state  treasurer  in  a special  fund  to  be  known  as  “The  Illinois  and  Mich- 
igan Canal  Fund.” 

Two  large  bond  issues  have  recently  been  authorized  in  this  state — 
$60,000,000  for  the  construction  of  state  aid  roads,  and  $20,000,000 
for  the  construction  of  a waterway  between  Lockport  and  Utica.  This 
department  is  charged  with  the  administration  of  both  of  these  funds. 

The  duties  of  this  department  include  the  general  supervision 
of  Ft.  Massac  Park,  Ft.  Chartres  Park,  Starved  Rock  State  Park,  the 
Lincoln  Monument,  the  Lincoln  Homestead  and  the  Douglas  Monu- 
ment Park.  The  largest  state  park  is  at  Starved  Rock  and  it  contains 
over  1,000  acres.  The  General  Assembly  in  1919  authorized  this  de- 
partment to  acquire  Old  Salem  State  Park,  and  to  construct  monuments 
to  Governors  Palmer,  Coles  and  Yates.  With  the  advice  of  the  centen- 
nial building  commission  the  department  has  supervision  of  the  con- 
struction of  the  new  centennial  memorial  building  in  Springfield. 

An  important  law  in  relation  to  state  contracts  was  enacted  in 
1915.  Under  it  the  department  of  public  works  and  buildings  has  an 
effective  supervision  over  state  printing. 

The  state  highway  division  exercises  some  control  over  the  choice 
of  county  superintendents  of  highways  in  this  state.  The  county  board 
submits  to  it  a list  of  from  three  to  five  persons,  and  the  highway  com- 
mission determines  by  a competitive  examination  the  person  or  persons 
best  fitted  for  the  position  and  certifies  the  names  to  the  county  board, 
which  then  makes  the  appointment.  If  no  qualified  person  appears 


659 


upon  the  first  list,  the  county  board  is  required  to  submit  a second  list 
and  if  no  one  from  it  is  qualified,  the  board  may  employ  a non-resident 
of  the  county  who  has  passed  a satisfactory  examination.  The  county 
superintendent  of  highways  performs  various  duties  that  are  subject 
to  the  rules  and  regulations  of  the  state  highway  commission.  Various 
duties  are  imposed  upon  the  state  highway  division  by  the  federal  aid 
road  act,  in  connection  with  the  allotment  of  federal  funds  to  the 
state.  The  state  highway  division  must  submit  project  statements  to 
the  secretary  of  agriculture  of  the  United  States  and  if  approved  by 
him,  ai}d  all  other  conditions  have  been  satisfied,  the  state  may  re- 
ceive the  benefit  of  the  act. 

Department  of  Public  Welfare.  The  department  of  public  wel- 
fare has  the  power  to  exercise  all  the  rights,  powers  and  duties  pre- 
viously vested  by  law  in  the  following  boards,  commissions,  officers, 
institutions,  and  offices,  their  assistants,  other  officers  and  employes : 
the  board  of  administration,  the  state  deportation  agent,  the  state 
agent  for  the  visitation  of  children,  Illinois  state  penitentiary  at  Joliet, 
southern  Illinois  penitentiary,  Illinois  state  reformatory,  board  of 
prison  industries,  board  of  classification,  and  the  board  of  pardons. 

A board  of  public  welfare  commissioners,  composed  of  five  per- 
sons, is  included  in  the  organization  of  this  department,  whose  func- 
tion it  is  to  investigate  the  condition  and  management  of  the  whole 
system  of  charitable,  penal  and  reformatory  institutions  of  the  state, 
to  make  special  investigations  when  directed  to  do  so  by  the  Governor, 
to  inquire  into  the  equipment  and  management  of  all  institutions  and 
organizations  coming  under  the  supervision  and  inspection  of  the  de- 
partment of  public  welfare,  and  to  collect  and  publish  annually  statis- 
tics relating  to  insanity  and  crime. 

The  Civil  Administrative  Code  creates  the  following  officers  in  the 
department  of  public  welfare : Alienist,  criminologist,  fiscal  super- 

visor, superintendent  of  charities,  superintendent  of  prisons,  superin- 
tendent of  pardons  and  paroles.  The  alienist  is  in  charge  of  the  state 
psychopathic  institute  in  Kankakee  and  the  criminologist  is  in  charge 
of  the  juvenile  psychopathic  institute  in  Chicago.  The  department  has 
organized  a division  of  visitation  of  adult  blind  and  a division  of  vis- 
itation of  children.  It  has  also  appointed  a superintendent  of  social 
service  and  a superintendent  of  occupational  therapy.  In  addition 
to  the  two  psychopathic  institutes,  there  are  twenty-three  state  institu- 
tions under  the  control  of  this  department,  namely : 

Elgin  State  Hospital,  Elgin,  (insane). 

Kankakee  State  Hospital,  Kankakee,  (insane). 

Jacksonville  State  Hospital,  Jacksonville,  (insane). 

Anna  State  Hospital,  Anna,  (insane). 

Watertown  State  Hospital,  Watertown,  (insane). 

Peoria  State  Hospital,  Peoria,  (insane). 

Chester  State  Hospital,  Chester,  (insane). 

Chicago  State  Hospital,  Dunning,  (insane). 

Alton  State  Hospital,  Alton,  (insane). 

Lincoln  State  School  and  Colony/Lincoln,  (feebleminded). 


Dixon  State  Colony,  Dixon,  (epileptic). 

Illinois  School  for  the  Deaf,  Jacksonville. 

Illinois  School  for  the  Blind,  Jacksonville. 

Illinois  Industrial  Home  for  the  Blind,  Chicago. 

Illinois  Soldiers’  and  Sailors’  Home,  Quincy. 

Soldiers’  Widows’  Home  of  Illinois,  Wilmington. 

Illinois  Soldiers’  Orphans’  Home,  Normal. 

Illinois  Charitable  Eye  and  Ear  Infirmary,  Chicago. 

St.  Charles  School  for  Boys,  St.  Charles. 

State  Training  School  for  Girls,  Geneva. 

Illinois  State  Penitentiary,  Joliet. 

Southern  Illinois  Penitentiary,  Menard. 

Illinois  State  Reformatory,  Pontiac. 

The  General  Assembly  has  provided  for  the  construction  of  a 
surgical  institute  for  children,  a state  farm  for  first  offenders  and 
a state  sanitarium  for  women.  The  department  of  public  welfare  is 
charged  with  the  licensing,  inspection  and  regulation  of  maternity 
homes  and  boarding  homes  for  children. 

Superintendents,  wardens  and  chaplains  of  the  state  charitable, 
penal,  and  correctional  institutions  are  exempt  from  civil  service. 

The  superintendent  of  public  instruction  is  charged  with  the 
duty  of  visiting  certain  of  these  institutions  and  inquiring  into  their 
educational  facilities.  The  officers  of  these  institutions  are  required 
to  make  reports  to  him  concerning  educational  matters.  The  adminis- 
trative officers  of  the  various  institutions  coming  under  the  state  insti- 
tution teachers’  pension  and  retirement  fund  are  required  to  transmit 
quarterly  to  the  state  treasurer  the  sums  retained  from  teachers’  sala- 
ries in  accordance  with  the  provisions  of  the  act  and  to  make  an  annual 
statement  to  him  of  all  money  so  retained. 

The  county  clerk  of  each  county  is  required  to  transmit  the  reports 
of  the  overseers  of  the  poor  to  the  department  of  public  welfare. 

Department  of  Public  Health.  The  department  of  public  health 
exercises  all  the  rights,  powers  and  duties  previously  vested  by  law  in 
the  state  board  of  health,  its  secretary  and  executive  officer,  other  offi- 
cers and  employes,  except  those  vested  under  the  acts  regulating  the 
practice  of  medicine  and  embalming.  It  makes  examinations  into  nui- 
sances and  questions  affecting  the  security  of  life  and  health  in  any 
locality  of  the  state,  investigates  and  inquires  into  the  causes  of  dis- 
ease, especially  epidemics,  and  causes  of  mortality,  and  makes  sanitary, 
sewage,  health,  and  other  inspections  for  the  charitable,  penal,  and 
reformatory  institutions,  and  the  normal  schools.  It  acts  in  an  advis- 
ory capacity  relative  to  public  water  supplies,  water  purification  works, 
sewerage  systems,  and  sewerage  treatment  works,  and  may  make  and 
enforce  rules  and  regulations  concerning  nuisances  growing  out  of 
their  operation.  It  maintains  laboratories  for  the  examination  of  milk, 
water,  sewage,  wastes,  and  other  substances,  and  to  make  necessary 
diagnosis  of  diseases.  It  purchases  and  distributes  free  of  charge  to 
citizens  of  the  state,  various  sera,  vaccines,  and  prophylactics,  of  rec- 
ognized efficiency  in  the  prevention  and  treatment  of  communicable  dis- 


m 


eases.  It  collects  and  preserves  information  relative  to  mortality,  mor- 
bidity, disease  and  health.  It  publishes  and  distributes  reports  and 
bulletins  concerning  the  prevention  of  disease,  and  the  health  and  sani- 
tary conditions  of  the  state. 

The  department  of  public  health  has  the  power  to  inspect  from 
time  to  time  all  hospitals,  sanitoria,  and  other  institutions,  conducted 
by  county,  city,  village  or  township  authorities,  and  report  their  sani- 
tary needs  to  the  official  authority  having  jurisdiction  over  them.  It 
is  required  to  keep  informed  of  the  work  of  local  health  officers  and 
agencies  throughout  the  state,  and  to  supervise,  aid,  direct,  and  assist 
them  in  the  administration  of  the  health  laws. 

The  code  provides  for  a superintendent  of  lodging  house  inspec- 
tion and  a board  of  public  health  advisers,  composed  of  five  persons. 
The  following  divisions  have  been  organized  in  the  department  of  pub- 
lic health : 

Executive  division. 

Division  of  communicable  diseases. 

Division  of  tuberculosis. 

Division  of  sanitation. 

Division  of  vital  statistics. 

Division  of  child  hygiene  and  public  health  nursing. 

Division  of  surveys  and  rural  hygiene. 

Division  of  diagnostic  laboratories. 

Division  of  hotel  and  lodging  house  inspection. 

Division  of  public  health  instruction. 

Division  of  social  hygiene. 

Division  of  biological  and  research  laboratories. 

Under  the  occuptional  diseases  act  the  department  of  public  health 
is  required  to  furnish  blanks  to  physicians  for  examinations  of  em- 
ployes for  vocational  and  occupational  diseases  and  to  transmit  such 
reports  to  the  division  of  factory  inspection  of  the  department  of  labor. 

When  the  local  authorities  neglect  or  refuse  to  enforce  rules  and 
regulations  of  the  department  of  public  health  promptly  and  effi- 
ciently in  the  suppression  of  contagious  or  infectious  diseases,  the  de- 
partment may  enforce  such  measures,  and  all  necessary  expenses  so 
incurred  must  be  paid  by  the  city  or  village  for  which  the  service  is 
rendered.  It  is  the  duty  of  the  state’s  attorney  in  each  county  to 
prosecute  all  persons  in  the  county  violating  or  refusing  to  obey  the 
rules  and  regulations  of  the  department  of  public  health.  Prosecu- 
tions may  be  instituted  by  the  department  and  all  fines  or  judgments 
collected  or  received  must  be  turned  over  to  the  state  treasurer. 

An  act  passed  in  1915  concerning  the  registration  of  births  and 
deaths  makes  the  director  of  public  health  superintendent  of  such  reg- 
istration, and  vests  the  administration  of  the  law  in  the  department  of 
public  health.  The  clerks  of  cities,  villages,  and  incorporated  towns 
are  made  the  local  registrars  of  vital  statistics.  Certificates  of  births 
and  deaths  registered  bv  them  must  contain  at  least  the  items  of  the 
standard  certificate  approved  and  adopted  by  the  United  States  Bureau 
of  the  Census.  In  cases  where  death  occurs  without  medical  attend- 
ance the  coroner  is  required  to  furnish  such  information  as  may  be  re- 
quired by  the  department  of  public  health  in  order  to  classify  the  cause 


662 


of  the  death.  All  physicians,  midwives,  undertakers  and  sextons,  arc 
required  to  register  once  each  year  with  the  local  registrar  and  he  is 
directed  to  send  a list  of  those  registered  with  him  to  the  department 
of  public  health  within  thirty  days  after  the  end  of  the  calendar  year. 
Superintendents  of  hospitals,  almshouses,  and  other  institutions  treat- 
ing persons  for  disease,  are  required  to  give  such  information  con- 
cerning inmates  as  may  be  prescribed  by  this  department. 

The  department  of  public  health  is  required  to  compile  and  pub- 
lish an  annual  report  of  births  and  deaths  with  such  matter  as  will 
serve  to  promote  public  health  and  the  general  welfare  of  the  citizens 
of  the  state.  At  the  end  of  each  calendar  year  it  certifies  to  the  county 
clerk  of  each  county  the  number  of  births,  stillbirths,  and  deaths  prop- 
erly registered  in  the  county,  with  the  names  of  the  persons  entitled  to 
the  prescribed  fees  for  registration  work,  and  the  amount  due  each 
at  the  rate  fixed  in  the  act.  The  county  clerk  is  directed  to  issue  his 
warrant  on  the  county  treasurer  for  such  fees,  and  the  county  treas- 
urer to  pay  the  same  upon  presentation.  It  is  made  the  duty  of  all 
boards  of  county  commissioners  or  boards  of  supervisors  to  appropriate 
such  amounts  as  may  be  necessary  to  carry  out  this  act.  The  local 
registrars  are  charged  with  the  enforcement  of  this  act  under  the 
direction  and  supervision  of  the  department  of  public  health.  This 
department  has  the  power  to  investigate  cases  of  irregularity  or  viola- 
tions of  the  law.  When  the  department  deems  it  necessary,  it  has  the 
power  to  report  cases  to  the  state’s  attorney  who  is  directed  to  initiate 
proceedings  for  the  alleged  violation. 

Under  an  act  passed  in  1917  authorizing  the  organization  of  public 
health  districts  and  the  maintenance  of  a public  health  department  by 
such  districts,  it  is  made  the  duty  of  the  department  of  public  health 
to  prepare  a list  of  eligibles  for  appointment  as  public  health  officers. 
This  list  is  selected  by  open,  competitive  examination,  of  which  notice 
must  be  given  in  the  “official  newspaper”  selected  by  the  department  of 
public  works  and  buildings.  It  is  the  duty  of  the  district  Public  health 
officers  to  enforce,  and  observe  the  rules,  regulations,  and  orders  of 
the  department  of  public  health  and  all  state  laws  concerning  public 
health. 

Under  an  act  passed  in  1905,  it  is  the  duty  of  the  department  of 
public  health  to  appoint  one  agent  in  the  county  seat  of  each  county, 
to  sell  certified  diphtheria  anti-toxin  to  persons  able  to  purchase  it. 
Others  are  to  be  supplied  with  it  at  the  expense  of  the  county  upon  an 
order  from  the  overseer  of  the  poor. 

Boards  of  examiners  of  plumbers  in  cities  of  10,000  or  more  are 
directed  to  prescribe  rules  and  regulations  for  materials,  constructions, 
alterations,  and  inspection  of  all  plumbing  and  sewerage  with  the 
advice  of  the  department  of  public  health. 

The  department  of  public  health  is  required  to  approve  rules 
adopted  by  the  department  of  registration  and  education,  regulating  the 
sanitary  conditions  of  barber  shops. 


Department  of  Trade  and  Commerce.  The  department  of  trade 
and  commerce  is  given  power  by  the  terms  of  the  law  to  exercise 


663 


through  the  public  utilities  commission  all  the  rights,  powers  and  duties 
vested  by  law  in  the  state  public  utilities  commission,  its  officers  and 
employes.  It  also  exercises  all  the  rights,  powers,  and  duties  vested 
by  law  in  the  insurance  superintendent,  the  grain  inspection  service, 
the  inspectors  of  automatic  couplers  and  power  brakes  on  railroad 
locomotives,  and  the  state  fire  marshal,  their  assistants,  officers  and 
employes.  It  is  charged  with  the  execution  of  laws  relating  to  weights 
and  measures,  standards  of  quantity  or  quality  for  commodities,  and 
the  safety  and  purity  of  illuminating  oils  and  gasolines. 

The  code  creates  the  following  officers  in  the  department  of  trade 
and  commerce  : Superintendent  of  insurance,  fire  marshal,  superintend- 
ent of  standards,  chief  grain  inspector,  the  public  utilities  commission, 
which  consists  of  five  officers,  designated  public  utility  commissoners, 
and  the  secretary  of  the  pubic  utilities  commission.  The  public  utili- 
ties commission  exercises  all  rights,  powers  and  duties  vested  by  law 
in  it  without  any  direction,  supervision  or  control  by  the  director  of 
trade  and  commerce. 

For  convenience  of  administration,  the  director  has  designated 
the  various  activities  of  the  department  of  trade  and  commerce  as 
follows : 

General  office. 

Division  of  insurance. 

Division  of  grain  inspection  at  Chicago. 

Division  of  grain  inspection  at  East  St.  Louis. 

Division  of  fire  prevention. 

Division  of  public  utilities. 

Division  of  standards. 

Division  of  small  loans. 

This  department  is  charged  with  the  enforcement  of  the  insurance 
laws  of  the  state,  the  reporting  of  violations  of  insurance  and  fire  pre- 
vention laws  to  the  attorney  general  for  prosecution,  the  licensing  of 
insurance  agents,  and  the  collection  of  taxes  and  fees  imposed  upon 
insurance  corporations. 

The  federal  government,  in  order  to  make  its  supervision  over 
grain  inspection  effective,  has  adopted  the  policy  of  licensing  grain 
inspectors  employed  by  the  state,  and  the  state  public  utilities  com- 
mission has  adopted  the  federal  standards  for  wheat  and  corn.  Actu- 
aries and  examiners  of  insurance  companies  in  this  department  are 
exempt  from  civil  service. 

The  director  of  trade  and  commerce  is  ex-officio  a member  of 
the  board  for  vocational  education.  In  the  administration  of  the  laws 
concerning  weights  and  measures  the  department  of  trade  and  com- 
merce is  required  to  submit  the  state  standards  of  weights  and  mea- 
sures to  the  national  bureau  of  standards  for  certification  at  least  once 
in  ten  years.  The  enforcement  of  the  standards  is  left  to  the  county 
officials,  the  county  clerk  being  ex-officio  county  sealer.  The  depart- 
ment is  also  charged  with  the  licensing  of  small  loan  brokers.  High- 
way commissioners  are  required  to  erect  and  maintain  such  signs  as 
the  public  utilities  commissioners  may  prescribe  at  extra-hazardous 
grade  crossings. 


664 


Department  of  Registration  and  Education.  The  department  of 
registration  and  education  has  power  to  exercise  the  rights,  powers 
and  duties  previously  vested  by  law  in  the  board  of  education  of  the 
state  of  Illinois,  the  boards  of  trustees  of  the  normal  schools  at  Car- 
bondale,  DeKalb,  Charleston  and  Macomb ; the  board  of  veterinary 
examiners  and  the  state  board  of  live  stock  commissioners,  relating  to 
the  practice  of  veterinary  medicine  and  surgery;  the  boards  of  exam- 
iners of  horseshoers,  architects,  structural  engineers,  dentists,  nurses 
and  barbers ; the  state  board  of  health,  relative  to  the  practice  of  medi- 
cine, midwifery  and  embalming ; the  state  board  of  pharmacy,  and  the 
state  board  of  optometry. 

It  is  also  the  function  of  the  department  of  registration  and  edu- 
cation to  investigate  the  natural  resources  of  the  state,  to  prepare  plans 
for  the  conservation  and  development  of  such  resources,  and  to  that 
end  cooperate  with  other  departments  of  the  state,  other  states,  and 
the  United  States.  The  department  is  empowered  to  conduct  a natural 
history  survey  of  the  state,  to  investigate  the  entomology  of  the  state, 
to  study  the  geological  formation  of  the  state  with  reference  to  its 
resources  of  coal,  ores,  clays,  building  stones,  cement,  gas,  mineral  and 
artesian  water,  and  other  products,  to  collect  facts  and  data  concerning 
the  water  resources  of  the  state ; to  determine  standards  of  purity  of 
drinking  water  for  the  various  sections  of  the  state ; and  to  make 
analysis  of  samples  of  water  from  municpial  or  private  sources. 

The  department  of  registration  and  education  is  empowered  to 
publish  from  time  to  time,  reports  covering  the  entire  field  of  botany 
and  zoology  of  the  state ; articles  on  injurious  and  beneficial  insects  of 
the  state ; topographical,  geological  and  other  maps  to  illustrate  the 
resources  of  the  states ; and  the  results  of  its  investigations  of  the 
waters  of  the  state. 

The  department  is  also  empowered  to  distribute  to  the  various 
educational  institutions  of  the  state,  specimens,  samples  and  materials 
collected  by  it  after  they  have  served  the  purposes  of  the  department, 
and  to  supply  such  institutions  with  natural  history  specimens.  It  is 
directed  to  maintain  a state  museum,  and  to  collect  and  preserve 
objects  of  scientific  and  artistic  value.  It  is  its  duty  to  investigate, 
to  instruct  the  people  by  lecture,  demonstration  or  bulletins  concern- 
ing, and  to  conduct  experiments  with  respect  to  methods  of  preserving 
and  protecting  their  property  and  health  against  injuries  by  insects. 
The  department  is  directed  to  cooperate  with  the  United  States  geo- 
logical survey  in  the  preparation  and  completion  of  a contour  topo- 
graphical survey  and  map. 

The  management  of  the  normal  schools  is  vested  in  a normal 
school  board,  composed  of  nine  officers,  together  with  the  director  of 
registration  and  education,  who  is  ex-officio  chairman  of  the  board, 
and  the  superintendent  of  public  instruction  who  is  ex-officio  secre- 
tary. This  board  acts  independently  of  the  supervision,  direction  or 
control  of  the  director  or  any  other  officer  of  the  department  of  regis- 
traton  and  education.  It  is  empowered  to  examine  into  the  conditions, 
management  and  administration  of  the  state  normal  schools  and  to 
make  rules,  regulations  and  by-laws  for  the  management  and  govern- 


665 


ment  of  these  schools.  It  is  its  duty  to  visit  and  inspect  each  normal 
school  at  least  once  annually.  It  has  the  power  to  employ,  and  for 
good  cause,  remove,  the  presidents  of  the  state  normal  schools,  and  all 
necessary  professors,  teachers,  instructors,  and  employes,  and  fix 
their  salaries ; to  prescribe  the  course  of  study  to  be  followed,  and  the 
textbooks  and  apparatus  to  be  used,  and  to  issue  diplomas  and  confer 
degrees.  It  succeeds  to  and  administers  all  trusts  and  trust  property 
belonging  to  or  pertaining  to  any  of  the  state  normal  schools. 

The  code  also  provides  for  a superintendent  of  registration  and 
two  other  advisory  and  non-executive  boards,  the  board  of  natural 
resources  and  conservation  advisers  consisting  of  seven  persons,  and 
the  board  of  state  museum  advisers,  consisting  of  five  persons. 

The  board  of  natural  resources  and  conservation  acting 
through  five  or  more  sub-committees  each  of  which  is  composed  of 
the  director  of  registration  and  education,  the  president  of  the  Uni- 
versity of  Illinois  or  his  representative,  and  an  expert  adviser  specially 
qualified  in  each  of  the  fields  of  investigation,  is  directed  to  consider 
and  decide  all  matters  pertaining  to  natural  history,  geology,  water  and 
water  resources,  forestry  and  allied  research,  investigational,  and  sci- 
entific work.  This  board  has  the  power  to  select  and  appoint  without 
reference  to  the  state  civil  service  law,  members  of  the  scientific  staff, 
prosecuting  such  work.  It  is  directed  to  cooperate  with  the  University 
of  Illinois  in  the  use  of  this  scientific  staff  and  to  cooperate  with 
the  other  departments  in  prosecuting  such  research,  investigational  and 
scientific  work  as  may  be  useful  in  the  work  of  any  department. 

The  board  of  state  museum  advisers  advise  the  director  of  reg- 
istration and  education  in  all  matters  pertaining  to  maintenance,  ex- 
tension and  usefulness  of  the  state  museum. 

An  immigrants  commission,  composed  of  five  persons,  one  of 
whom  is  the  director  of  registration  and  education,  was  added  to  this 
department  in  1919.  It  is  empowered  to  make  a survey  of  the  immi- 
grant, alien  born  and  foreign  speaking  people  of  the  state,  of 
their  distribution,  conditions  of  employment,  and  standards  of  housing 
and  living ; to  examine  into  their  economic,  financial  and  legal  customs, 
their  provisions  for  insurance  and  other  prudential  arrangements, 
their  social  organization  and  their  educational  needs.  It  is  directed 
to  cooperate  with  state  and  local  officials,  and  with  immigrant  or  re- 
lated authorities  of  other  states  and  the  United  States. 

For  purposes  of  administration  the  director  has  organized  the 
department  as  follows : 

Stal£  museum — 

Board  of  state  museum  advisers. 

Scientific  surveys — 

Board  of  natural  resources  and  conservation  advisers. 

Natural  history  survey. 

Water  survey. 

Geological  survey. 

Entomological  survey. 


666 


Normal  schools — 

Normal  school  board. 

Illinois  state  normal  university,  Normal. 

Southern  Illinois  state  normal  university,  Carbondale. 
Northern  Illinois  state  normal  school,  DeKalb. 

Eastern  Illinois  state  normal  school,  Charleston. 

Western  Illinois  state  normal  school,  Macomb. 

Division  of  registration — 

Examining  committees : 

Architects. 

Barbers  (12  district  committees). 

Chiropodists. 

Dentists. 

Embalmers. 

Horseshoers. 

Medical  practitioners. 

Nurses. 

Optometrists. 

Pharmacists. 

Structural  engineers. 

Veterinarians. 

Immigrants  commission. 

The  presidents,  deans,  teachers,  scientific  staff  of  the  normal 
schools  and  one  private  secretary  for  the  president  of  each  normal 
school  are  exempt  from  civil  service. 

Upon  the  action  and  report  in  writing  by  a majority  of  certain 
persons  designated  for  this  purpose  for  each  profession,  trade  or  occu- 
pation, the  director  of  registration  and  education  has  the  power  to 
exercise  various  functions  in  connection  with  the  several  laws  regu- 
lating the  trades,  professions  and  occupations  enumerated  above.  He 
can  exercise  these  functions  only  upon  the  action  and  report  in  writing 
by  a majority  of  the  persons  designated  for  each  profession,  trade  or 
occupation,  by  the  director  to  assist  in  the  administration  of  the  laws. 
Among  these  powers  thus  exercised  by  the  director  of  registration  is 
the  power  to  conduct  examinations  to  determine  the  qualifications  and 
fitness  of  applicants,  to  prescribe  standards  of  preliminarv  education 
necessary  for  admission  to  these  examinations,  to  issue  licenses  and 
to  act  upon  their  revocation  or  renewal. 

The  director  of  registration  and  education  is  ex-officio  chairman 
of  the  board  of  vocational  education. 

The  statutes  provide  for  a board  of  examiners  of  plumbers  in 
every  city,  town  or  village  of  the  state  having  a population  of  ten 
thousand  or  more,  and  the  department  of  registration  and  education 
is  charged  with  the  enforcement  of  the  act  creating  such  boards  and 
providing  for  the  licensing  of  plumbers. 


667 


V.  DESCRIPTION  OF  THE  FUNCTIONS  OF  BOARDS, 
COMMISSIONS,  DEPARTMENTS  AND  OFFICES 
NOT  CREATED  BY  THE  CONSTITU- 
TION AND  NOT  UNDER  CIVIL 
ADMINISTRATIVE  CODE. 


There  are  a number  of  boards,  commissions,  departments  and 
offices  in  this  state  which  are  not  created  by  the  constitution,  and  are 
not  under  the  provisions  of  the  civil  administrative  code.  For  the 
purposes  of  this  bulletin,  these  governmental  agencies  may  be  classified 
according  to  the  method  of  appointment,  as  follows : 

1.  Appointment  by  the  Governor — 

Adjutant  General. 

Commission  for  the  Uniformity  of  Legislation  in  the 
United  States. 

Penitentiary  Commission. 

2.  Appointed  by  the  Governor  with  the  advice  and  consent  of  the 

Senate — 

Civil  Service  Commission. 

Court  of  Claims. 

Historical  Library. 

Lincoln  Park  and  the  West  Chicago  Park  Commissioners. 

3.  Ex-officio — 

Board  for  Vocational  Education. 

Board  of  Commissioners  of  the  State  Library. 

Joint  Legislative  Reference  Bureau. 

Primary  Canvassing  Board. 

State  Canvassing  Board. 

Tax  Levy  Board. 

4.  Partly  ex-officio  and  partly  appointed  by  the  Governor — 

Board  of  Trustees  of  the  Illinois  State  Teachers’  Pension 
and  Retirement  Fund. 

Board  of  Voting  Machine  Commissioners. 

Centennial  Building  Commission. 

5.  Partly  ex-officio  and  partly  elected  by  the  people — 

Board  of  Trustees  of  the  University  of  Illinois. 

6.  Partly  ex-officio  and  partly  appointed  by  an  ex-officio  board — 

Library  Extension  Commission. 

7.  Partly  ex-officio  and  partly  from  officers  and  members  of  vari- 

ous societies — 

Farmers’  Institute. 

8.  Partly  ex-officio  and  partly  appointed  by  a constitutional 

state  officer — 

Teachers’  Examining  Board. 

9.  Appointed  by  the  University  of  Illinois — 

Board  of  Examiners  in  Accounting. 


668 


1.  Appointed  by  the  Governor. 

Adjutant  General.  The  adjutant  general  is  appointed  by 
the  commander-in-chief  (the  Governor)  and  he  is  ex-officio  chief 
of  staff,  inspector  general,  quartermaster  general,  commissary 
general,  paymaster  general,  and  chief  of  ordnance  of  the  state  forc- 
es. He  has  the  rank  of  brigadier  general.  He  and  his  assistants 
must  be  men  of  military  training  and  experience  and  each  must 
have  had  service  as  an  officer  of  not  less  than  five  years,  at  least 
three  of  which  shall  have  been  in  the  line.  On  the  recommendation 
of  the  adjutant  general,  the  Governor  appoints  from  officers  or 
ex-officers  of  the  national  guard  or  naval  reserve,  not  below  the 
rank  of  captain  or  lieutenant,  the  following  assistants  to  the  ad- 
jutant general:  One  adjutant  general,  one  inspector  general,  one 

assistant  quartermaster  and  one  ordnance  officer,  each  with  rank 
of  colonel,  and  one  assistant  quartermaster  with  rank  of  captain. 

The  adjutant  general,  the  assistant  adjutant  general,  the  assist- 
ant quartermaster  general  and  the  assistant  quartermaster  are  all 
required  to  reside  at  the  state  capitol  and  give  their  entire  time  to 
their  military  duties. 

An  adjutant  general  with  the  rank  of  colonel  is  chief  assistant 
to  the  adjutant  general,  and  performs  the  duties  of  the  adjutant 
general,  in  the  event  of  his  disability  or  absence  from  the  state. 
The  department  also  has  one  lieutenant  colonel  and  three  majors. 
The  adjutant  general  receives  a salary  of  $7,000  per  annum. 

The  Governor  makes  all  appointments  in  the  commissioned 
rank  of  the  national  guard  and  the  naval  militia.  Commissions 
evidencing  all  appointments  must  be  signed  by  the  Governor  and 
attested  and  issued  by  the  adjutant  general.  All  positions  in  the 
military  service  are  exempt  from  civil  service. 

Commission  for  the  Uniformity  of  Legislation  in  the  United 
States.  This  commission  was  established  by  an  act  passed  in  1907. 
It  consists  of  five  men  appointed  by  the  Governor  for  a 
term  of  four  years.  Its  function  is  to  ascertain  the  best 
means  of  effecting  uniformity  in  the  laws  of  the  states.  Its 
duties  are  to  examine  the  subjects  of  marriage  and  divorce, 
commercial  paper,  insolvency,  form  of  notarial  certificates,  descent 
and  distribution  of  property,  acknowledgement  of  deeds,  execution 
and  probation  of  wills,  and  other  subjects  on  which  uniformity  is 
desirable,  to  represent  Illinois  in  conventions  and  congresses  of  like 
commissions,  and  to  devise  and  recommend  such  other  courses  of 
action  as  shall  best  accomplish  the  purposes  of  the  act^  The  com- 
missioners are  required  to  report,  biennially  to  the  Governor  at 
least  thirty  days  before  the  convening  of  the  General  Assembly, 
and  the  Governor  must  submit  such  report  with  his  recommenda- 
tions to  the  General  Assembly. 

Penitentiary  Commission.  This  commission  was  established 
in  1907.  It  consists  of  three  members  appointed  by  the 
Governor  and  he  has  the  power  to  fill  vacancies  occurring  in  the 
commission.  The  commissioners  serve  without  pay  but  receive 
their  reasonable  and  necessary  expenses.  They  elect  one  of  their 
number  president  and  another  secretary. 


669 


The  function  of  this  commission  is  to  select,  plan  and  supervise 
the  construction  of  a re-located  Illinois  state  penitentiary  and  Illinois 
asylum  for  insane  criminals  at  or  near  the  city  of  Joliet,  Illinois.  They 
are  given  the,  right  to  acquire  title  to  the  land  by  condemnation  under 
the  eminent  domain  laws  of  the  state.  They  are  authorized  to  employ 
architects,  superintendents,  agents,  overseers  and  workmen  and  make 
all  necessary  contracts.  If  they  deem  it  advisable  they  may  let  by 
contract  the  construction  of  the  buildings  to  the  lowest  and  best  re- 
sponsible bidder. 

In  the  construction  of  the  penitentiary  the  commission  is  required 
to  use  as  far  as  possible  the  labor  of  convicts  confined  in  the  Illinois 
state  penitentiary.  Whenever  such  convicts  are  employed,  the  warden 
of  the  Illinois  state  penitentiary  is  directed  to  provide  for  their  care 
and  custody. 

The  conveyances  of  the  site  of  these  buildings  must  be  passed 
upon  and  approved  by  the  attorney  general,  and  the  deeds  must  be 
filed  in  the  office  of  the  secretary  of  state.  The  auditor  is  directed  to 
pay  out  money  appropriated  upon  vouchers  signed  by  a majority  of  the 
commission. 


2.  Appointed  by  the  Governor  with  the  Advice  and  Consent  of  the 
Senate. 

Civil  Service  Commission.  The  state  civil  service  commis- 
sion was  established  by  an  act  passed  in  1905.  The  commission  is 
composed  of  three  members  appointed  by  the  Governor  with  the  advice 
and  consent  of  the  senate  for  a six  year  term.  Not  more  than  two 
members  may  be  of  the  same  political  party.  The  Governor  may 
remove  any  commissioner  for  want  of  moral  character,  incompetency, 
neglect  of  duty,  or  malfeasance  in  office.  He  must  at  the  same  time 
report  in  writing  any  such  removal  to  the  senate  with  his  reasons 
therefor  and  if  the  senate  is  not  in  session  this  report  is  filed  with  the 
secretary  of  state,  who  transmits  it  to  the  senate  within  ten  days  after 
the  commencement  of  the  next  session. 

Each  commissioner  receives  $3,000  per  annum  and  necessary 
traveling  expenses.  Commissioners  may  hold  no  other  lucrative  office 
or  employment  under  the  state,  the  United  States,  or  any  political 
sub-division  thereof.  The  commissioners  select  one  of  their  members 
as  president,  who  receives  $1,000  additional  salary  per  annum.  They 
meet  in  Springfield  at  least  once  in  each  month  except  August. 

The  function  of  this  commission  is  to  regulate  the  selection  of 
persons  for  appointive  positions  in  the  state  service.  The  following 
offices,  positions,  and  places  of  employment  are  exempt  from  the  clas- 
sified service  of  the  state:  Elective  officers;  judicial  officers;  em- 

ployes of  the  General  Assembly ; all  positions  in  the  military  service ; 
notaries  public ; officers  appointed  by  the  Governor  with  the  advice 
and  consent  of  the  senate ; one  private  secretary  and  one  stenographer 
for  each  elective  officer  in  the  executive  department ; one  private  secre- 
tary for  the  director  of  each  department  under  the  Civil  Administrative 
Code,  for  the  president  of  each  normal  school  and  for  the  president 


670 


and  each  dean  of  the  University  of  Illinois;  regular  and  special  assist- 
ants, law  clerks,  special  investigators  and  special  attorneys  in  the 
attorney  generals  office ; all  presidents,  deans,  teachers  and  scientific 
staff  oi  the  University  of  Illinois  and  of  the  state  normal  schools; 
employes  at  the  executive  mansion ; superintendent  and  assistant 
superintendent  of  capitol  building  and  grounds ; bank  examiners,  ex- 
aminers of  building  and  loan  associations,  insurance  actuaries,  and 
examiners  of  insurance  companies ; superintendents,  wardens  and 
chaplains,  in  the  state  charitable,  penal  and  correctional  institutions; 
clerks,  watchmen  and  policemen  in  the  offices  of  the  elective  officers ; 
students  employed  at  the  University  of  Illinois  and  the  normal  schools 
under  civil  service  rules  without  examination  or  certification ; technical 
assistants,  clerks  and  stenographers  of  the  vocational  education  board. 

The  law  requires  the  appointing  officers  to  make  requisition  upon 
the  civil  service  commission  for  each  position  in  the  classified  service 
to  be  filled,  and  the  civil  service  commission  certifies  to  him  the  name 
and  address  of  the  person  standing  highest  upon  the  list  of  eligibles, 
as  determined  by  competitive  examinations. 

The  commission  is  directed  to  classify  all  offices  and  places  of 
employment  with  the  above  exceptions.  The  offices  and  places  so  . 
classified  constitute  the  classified  service  and  no  appointment  may  be 
made  except  under  the  provisions  of  the  law.  The  commission  is 
given  the  power  to  investigate  the  conditions  of  the  classified  service 
in  regard  to  efficiency,  and  is  authorized  to  make  recommendations 
to  the  officer  in  charge  for  improving  the  service,  and  in  case  its 
suggestions  are  not  carried  out,  to  report  the  fact  to  the  Governor. 

It  is  also  authorized  to  standardize  the  employment  in  all  grades  of 
the  public  service. 

The  civil  service  commission  is  directed  to  make  a report  to 
the  Governor  on  or  before  the  fifteenth  day  of  January  of  each  year 
showing  its  own  action,  rules  in  force,  the  practical  effects  thereof, 
and  suggestions  for  the  effectual  accomplishment  of  the  purposes 
of  the  act.  The  Governor  may  require  a report  from  the  commis- 
sion at  any  time.  The  commission  has  power  to  compel  the  at- 
tendance and  testimony  of  witnesses,  the  production  of  books  and 
papers,  at  hearings  and  investigations.  It  employs  a chief  examin- 
er who  is  ex-officio  secretary  of  the  commission  and  works  under 
its  direction.  He  superintends  all  examinations.  His  salary  is 
$3,500  per  annum.  Boards  of  examiners  or  trial  boards  (not  in  the 
official  service  of  the  state)  receive  not  to  exceed  $5.00  per  diem 
and  necessary  traveling  expenses. 

The  Governor  may  not  approve  a voucher  for  services  of  any 
person  employed  in  violation  of  the  provisions  of  this  act.  The 
commission  certifies  to  the  state  auditor  all  appointments  and  re- 
movals in  the  classified  service  and  he  may  only  approve  salaries 
of  lawful  employes  upon  certification  of  the  civil  service  commis- 
sion. 

The  validity  of  the  civil  service  act  was  attacked  in  the  case  of 
People  v.  McCullough,  254  111.,  9,  (1912).  The  question  involved  was 
whether  the  act  applied  to  certain  employes  in  the  offices  of  the  elect- 
ive officials.  This  was  a suit  of  mandamus  to  force  the  auditor  to  issue 
to  the  relators,  who  were  employes  in  the  office  of  the  secretary  of 
state,  warrants  on  the  state  treasurer  for  the  amounts  due  them,  with- 


671 


out  the  certification  of  the  civil  service  commission  as  required  by  law. 
The  relators  contended  that  the  certificate  of  the  civil  service  commis- 
sion was  unnecessary  for  the  reason  that  the  civil  service  act  as  applied 
to  officers  whose  offices  were  created  by  the  constitution  was  null  and 
void  for  two  reasons : First,  because  it  violated  article  3 of  the  consti- 
tution of  Illinois  which  declares  that  the  powers  of  government  are 
divided  into  three  distinct  departments — legislative,  executive  and 
judicial — and  prohibits  any  department  from  exercising  any  power 
belonging  to  either  of  the  others.  In  regard  to  this  matter,  the  Supreme 
Court  held  that  the  civil  service  act  as  applied  to  the  office  of  the  secre- 
tary of  state  was  not  in  violation  of  article  3,  because  the  appointment, 
whether  made  by  the  secretary  of  state  or  the  civil  service  commission, 
was  made  by  the  executive  department.  Second,  it  was  contended  that 
the  civil  service  law  in  limiting  the  power  of  the  secretary  of  state  to 
make  appointments  was  in  violation  of  section  1 of  article  5 of  the 
Illinois  constitution  which  names  the  officers  who  shall  comprise  the 
executive  department,  and  provides  that  the  secretary  of  state,  to- 
gether with  the  other  state  officers,  shall  perform  such  duties  as  may 
be  prescribed  by  law.  The  result  of  the  court’s  action  was  to  apply 
the  civil  service  act  to  the  positions  of  assistant  chief  clerk,  corporation 
clerk  and  bookkeeper  in  the  office  of  the  secretary  of  state,  on  the 
ground  that  such  application  was  not  an  unlawful  interference  by  the 
legislative  department  with  the  constitutional  powers  and  duties  of  the 
office  of  secretary  of  state,  although  the  court  was  badly  divided.  In 
People  v.  Brady,  275  111.,  261  (1916),  an  employee  in  the  office  of  the 
clerk  of  the  Supreme  Court  sought  to  avoid  the  application  of  the 
civil  service  law,  urging  the  same  objections  which  had  been  made  in 
the  McCullough  case.  The  court  rejected  both  objections,  and  said: 
“The  mention  of  an  officer  in  the  constitution  does  not  place  him  above 
the  law  and  give  him  the  same  control  of  his  office  as  of  his  private 
business.  He  is  a public  officer  and  the  business  of  his  office  must  be 
conducted  according  to  law.  The  legislature  may  not  deprive  him  of 
the  power  conferred  upon  him  by  the  constitution,  but  it  has  power  to 
make  reasonable  regulations  in  regard  to  the  means  by  which,  and 
the  time,  place  and  manner  in  which,  the  duties  of  such  constitutional 
officer  shall  be  performed.  The  duties  of  a clerk  may  be  performed 
by  a deputy,  and  it  is  not  an  unreasonable  regulation  to  prescribe 
reasonable  qualifications  for  persons  who  may  be  employed  as  deputies 
and  removal  from  office  for  a lack  of  efficiency  in  the  performance  of 
its  duties.” 

Coart  of  Claims.  A body  called  the  court  of  claims,  but 
not  a part  of  the  judicial  organization  of  the  state,  was  recreated 
under  an  act  passed  in  1917.  The  old  court  of  claims  was  abolished 
by  the  Civil  Administrative  Code.  The  court  consists  of  a chief  justice 
and  two  members  appointed  by  the  Governor  with  the  advice  and 
consent  of  the  senate  for  a four-year  term  commencing  the  second 
Monday  in  Tanuarv  next  after  the  election  of  a Governor.  They  each 
receive  a salarv  of  $1,500  per  annum,  payable  monthly. 

The  function  of  the  court  of  claims  is  to  hear  and  determine 
private  claims  against  the  state  and  to  hear  and  give  its  opinion  on  any 
controverted  questions  of  claim  and  demand  referred  to  it  by  any  offi- 


672 


cer  of  the  state.  It  may  also  hear  and  determine  the  liability  of  the 
state  for  accidents  to  its  employes  in  accordance  wih  the  workmen’s 
compensation  act,  the  industrial  commission  being  relieved  from  any 
duty  with  reference  thereto. 

The  court  has  power  to  make  rules  for  practice  and  procedure 
before  the  court,  to  compel  the  attendance  of  witnesses  and  the  pro- 
duction of  books  and  papers.  The  concurrence  of  two  members  is 
necessary  to  a decision  in  any  case.  The  court  files  a brief  written 
statement  of  the  reasons  for  its  determination  in  each  case  and  of  its 
awards.  The  authority  conferred  on  the  court  of  claims  is  by  statute 
made  exclusive,  and  the  statute  further  provides  that  no  appropriation 
to  pay  claims  shall  be  made  by  the  legislature  unless  an  award  has  been 
made  by  the  court  of  claims. 

The  secretary  of  state  is  ex-officio  secretary  of  the  court  of  claims. 
He  is  directed  to  compile  and  publish  annually  the  opinions  of  the 
court.  The  attorney  general  appears  for  and  represents  the  interests 
of  the  state  in  all  matters  before  the  court. 

Illinois  State  Historical  Library.  This  library  was  established 
by  an  act  passed  in  1889.  It  is  under  the  control  and  man- 
agement of  three  trustees,  appointed  by  the  Governor,  by  and  with 
the  consent  of  the  senate  for  a two-year  term.  They  must  be  well 
versed  in  the  history  of  the  state  and  qualified  by  habit  and  disposition 
to  discharge  the  duties  of  their  office.  They  receive  no  compensation 
except  actual  expenses  while  in  the  discharge  of  their  duties,  to  be 
paid  upon  itemized  accounts,  approved  by  the  Governor. 

The  trustees  have  power  to  procure  all  books,  pamphlets,  manu- 
scripts, monographs,  and  other  material  bearing  upon  the  political, 
physical,  religious  or  social  history  of  the  state  of  Illinois.  The  Illinois 
state  historical  society  is  a department  of  the  historical  library  and 
the  trustees  are  authorized  to  pay  certain  expenditures  for  the  histor- 
ical society  out  of  the  historical  library  appropriations.  All  expendi- 
tures are  paid  by  proper  vouchers  approved  by  the  Governor,  and  the 
auditing  of  the  accounts  of  appropriations  to  the  state  historical  so- 
ciety is  subject  to  the  approval  of  the  Governor.  The  trustees  have 
power  to  select  a librarian  whose  salary  is  $3,000  per  annum. 

Lincoln  Park  and  West  Chicago  Park  Commissioners.  The 
Governor  appoints  the  West  Chicago  park  commissioners  under 
an  act  passed  in  1869,  and  the  Lincoln  park  commission- 
ers under  an  act  passed  in  1871.  The  appointment  of  these  com- 
missioners is  made  with  the  advice  and  consent  of  the  senate.  The 
park  districts,  whose  affairs  are  managed  by  these  commissioners,  are 
located  in  the  city  of  Chicago.  The  number  of  commissioners  for  each 
park  district  is  seven  and  they  are  appointed  for  five  year  terms. 


3.  Ex-officio. 

Board  for  Vocational  Education.  This  board  was  established  by 
an  act  passed  in  1919.  It  is  composed  of  the  superintend- 
ent of  public  instruction,  the  director  of  registration  and  education, 
the  director  of  agriculture,  the  director  of  labor,  and  the  director  of 


673 


trade  and  commerce,  ex-officio.  The  director  of  registration  and  educa- 
tion is  ex-officio  chairman  of  this  board,  and  the  superintendent  of 
public  instruction  is  its  executive  officer. 

The  board  is  to  co-operate  with  the  federal  government  in  the 
administration  of  the  federal  vocational  education  law,  to  promote  the 
establishment  of  vocational  classes,  and  to  distribute  the  vocational 
education  fund  allotted  to  this  state  by  congress.  The  board  is  empow- 
ered to  appoint,  without  reference  to  the  civil  service  law,  such  tech- 
nical assistants,  clerks  and  stenographers  as  may  be  necessary.  The 
state  treasurer  is  the  custodian  of  the  vocational  education  funds 
allotted  to  this  state  by  congress. 

Board  of  Commissioners  of  the  State  Library.  The  state  library 
was  established  in  1845.  The  Governor,  secretary  of  state,  and  super- 
intendent of  public  instruction  constitute  the  board  of  commissioners 
for  the  management  of  the  state  library,  of  which  board  the  Governor 
is  president. 

The  function  of  the  commissioners  is  to  make  and  carry  into  effect 
all  rules  and  regulations  for  the  care,  arrangement  and  use  of  the 
books,  maps,  charts,  papers,  and  furniture  of  the  state  library.  Books 
may  be  taken  from  the  library  by  members  of  the  General  Assembly 
during  sessions,  justices  of  the  Supreme  Court,  and  the  Governor  and 
officers  of  the  executive  department. 

The  secretary  of  state  is  librarian  ex-officio,  and  he  has  the  custody 
and  charge  of  the  library.  He  is  requred  to  prepare  an  alphabetical 
catalogue  of  the  library,  and  report  the  same  to  the  board  of  commis- 
sioners who  are  directed  to  publish  it.  Before  the  auditor  may  issue  his 
warrant  to  any  member  or  officer  of  the  General  Assembly  for  his 
services  during  the  session,  he  must  be  satisfied  that  such  member  or 
officer  has  returned  all  books  to  the  state  library,  and  settled  all 
accounts  for  injuring  books  or  otherwise. 

Joint  Legislative  Reference  Bureau.  The  joint  legislative  ref- 
erence bureau  was  established  by  an  act  passed  in  1913. 
It  is  composed  of  the  Governor,  and  chairman  of  the  committees  on 
appropriations  and  judiciary  of  the  house  of  representatives  and  the 
senate.  The  Governor  is  ex-officio  chairman  of  the  bureau.  The  mem- 
bers of  the  bureau  receive  no  compensation,  but  they  are  entitled  to 
actual  and  necessary  expenses  incurred  in  the  performance  of  their 
duties.  They  meet  during  the  regular  and  special  sessions  of  the  Gen- 
eral Assembly  and  at  such  other  times  as  they  may  determine. 

The  function  of  the  bureau  is  to  collect  and  keep  in  the  state 
capitol  such  laws,  reports,  books,  periodicals,  documents,  catalogues, 
check-lists,  digests  and  summaries  of  the  laws  of  other  states  on  cur- 
rent legislation  as  may  aid  the  members  of  the  General  Assembly  in  the 
performance  of  their  official  duties.  The  bureau  is  required  to  publish 
a digest  or  summary  of  all  bills  and  resolutions  introduced  in  each 
branch  of  the  General  Assembly,  and  to  furnish  copies  to  each  member 
on  Monday  of  each  week  during  the  session  of  the  General  Assembly. 
It  furnishes  legal  assistance  to  members  of  the  General  Assembly  upon 
their  request,  in  the  preparation  of  bills,  resplutions  and  amendments. 


674 


The  legislative  reference  bureau  appoints  a secretary,  who  is  re- 
quired to  give  his  entire  time  to  the  duties  of  the  office,  and  whose 
salary  may  not  exceed  $5,000  per  annum.  It  also  appoints  other  offi- 
cers and  employes  and  fixes  their  compensation. 

The  secrtary  of  state  is  required  to  provide  the  bureau  with  suit- 
able offices,  convenient  to  the  meeting  place  of  the  General  Assembly, 
and  with  the  necessary  furniture,  stationery  and  supplies.  The  state 
library  is  directed  to  co-operate  with  the  bureau  and  make  the  facilities 
of  the  library  accessible  to  it,  and  loan  it  material.  All  proper  expenses 
are  paid  from  its  appropriations  upon  itemized  vouchers,  signed  by  the 
secretary  and  approved  by  the  Governor. 

Primary  Canvassing  Board . This  board  was  created  in 

1910  by  an  act  to  provide  for  the  holding  of  primary  elections  by 
political  parties.  In  case  of  the  nomination  of  candidates  for  offices, 
including  the  presidential  primary,  and  that  for  state  central  commit- 
teemen and  delegates  and  alternate  delegates  to  national  nominating 
conventions,  for  which  elections  certified  tabulated  statements  of  re- 
turns are  filed  with  the  secretary  of  state,  the  returns  are  canvassed 
by  the  Governor,  secretary  of  state  and  state  treasurer. 

State  Canvassing  Board.  The  state  canvassing  board  is 
composed  of  the  secretary  of  state,  auditor,  treasurer  and  attorney  gen- 
eral. This  board,  or  any  two  of  them,  in  the  presence  of  the  Governor 
proceeds  within  twenty  days  after-  the  election,  and  sooner  if  all  the 
returns  are  received,  to  canvass  the  votes  for  United  States  senators 
and  representatives,  judges  and  clerks  of  the  Supreme  Court,  judges 
of  the  circuit  courts,  members  of  the  General  Assembly  and  trustees  of 
the  University  of  Illinois.  The  persons  having  the  highest  number  of 
votes  are  declared  elected.  In  case  of  a tie,  the  secretary  of  state,  in 
the  presence  of  the  other  officers  and  the  Governor,  decides  by  lot 
which  of  such  persons  is  elected.  The  Governor  is  directed  to  give 
those  elected  a certificate  of  election  or  commission,  and  he  issues  a 
proclamation  of  the  results  of  the  canvass.  At  the  same  time  and  in 
the  same  manner  the  votes  on  constitutional  amendments  and  other 
propositions  voted  on  by  the  entire  state  are  canvassed.  The  abstracts 
of  votes  which  this  board  canvasses  are  prepared  by  the  county  clerks, 
assisted  by  two  justices  of  the  peace  of  the  respective  counties,  and 
sent  to  the  secretary  of  state.  Two  copies  of  the  abstracts  are  sealed 
in  separate  envelopes  and  both  are  sent  to  him,  one  addressed  to  the 
“speaker  of  the  House  of  Representatives,”  and  the  other  to  the  “sec- 
retary of  state.”  The  canvassing  of  votes  by  this  board  is  not  exclusive 
in  many  cases.  By  article  V,  section  4 of  the  constitution,  the  speaker 
of  the  House  of  Representatives  opens  and  publishes  the  returns  of 
every  election  for  elective  state  officers  of  the  executive  department,  in 
the  presence  of  a majority  of  the  two  houses. 

Tax  Levy  Board.  The  Governor,  auditor  and  treasurer  are 
required  annually,  on  the  completion  of  the  assessment  and  equalization 
of  property,  to  ascertain  the  rate  per  cent  required  to  produce  the 
amount  of  taxes  levied  by  the  General  Assembly.  When  this  rate  is 
ascertained,  the  auditor  certifies  to  the  county  clerks  the  proper  rates 
per  cent  to  be  levied  and  collected  as  state  taxes. 


675 


4.  Partly  ex-officio  and  partly  appointed  by  the  Governor. 

Board  of  Trustees  of  the  Illinois  State  Teachers'  Pension  and  Re- 
tirement Fund.  The  Illinois  state  teachers’  pension  and  retirement 
fund  was  established  by  an  act  passed  in  1915.  It  is  ad- 
ministered by  a board  of  trustees  consisting  of  five  mem- 
bers, the  superintendent  of  pubic  instruction  and  the  state 
treasurer,  ex-officio,  and  three  members  appointed  from  those  under 
the  pension  system,  by  the  Governor  with  the  advice  and  consent  of  the 
Senate  for  a term  of  three  years.  Members  of  the  board  receive  no 
compensation  except  necessary  expenses  incurred  in  attending  the 
meetings.  If  the  board  elects  one  of  its  members  secretary,  he  receives 
compensation  for  his  services.  The  superintendent  of  public  instruc- 
tion is  ex-officio  president,  and  the  state  treasurer  is  ex-officio  treasurer 
of  the  board.  The  state  treasurer  is  liable  on  his  official  bond  for 
the  proper  performance  of  his  duties  and  the  conservation  of  this 
fund.  The  board  of  trustees  meets  regularly  four  times  a year. 

The  function  of  the  board  of  trustees  is  to  administer  the  teachers’ 
pension  fund,  to  invest  the  same  upon  the  approval  of  the  state  trea- 
surer, and  to  make  payment  from  the  fund  of  the  pensions  and  annui- 
ties granted  in  the  act.  The  board  of  trustees  appoints  a secretary  and 
fixes  his  compensation,  which,  with  all  other  expenses  is  paid  out  of 
the  teachers’  pension  fund.  The  auditor  is  authorized  to  pay  all  sal- 
aries, annuities  and  expenses  upon  the  presentation  of  vouchers  ap- 
proved by  the  president  and  secretary  of  the  board  of  trustees.  An- 
nuities are  paid  quarterly. 

The  board  of  trustees  is  directed  to  report  annually  at  the  first 
meeting  after  June  30.  This  report  is  transmitted  to  the  superinten- 
dent of  public  instruction,  and  included  in  his  biennial  report  to  the 
Governor.  The  board  of  directors,  board  of  education  or  other  gov- 
erning body  of  public  schools  in  each  district  coming  under  the  pro- 
visions of  this  act,  is  required  each  year  within  seven  days  after  June 
30,  to  forward  to  the  state  treasurer  a statement  of  moneys  retained 
from  salaries  in  accordance  with  this  act,  together  with  such  money. 
At  the  same  time  a copy  of  this  report  must  be  sent  to  the  county  super- 
intendent. If  no  teacher  comes  under  the  provisions  of  the  act,  the 
school  authorities  must  file  a statement  of  that  fact  under  oath  with 
the  county  superintendent  and  with  the  state  treasurer.  The  managing 
bodies  enumerated  must  keep  a complete  and  uniform  record  of  data 
contained  in  these  reports  in  such  form  as  may  be  prescribed  by  the 
board  of  trustees  of  said  retirement  fund.  The  state  treasurer  is  di- 
rected to  credit  all  moneys  received  under  this  act  to  the  fund  desig- 
nated as  the  Illinois  state  teachers’  pension  and  retirement  fund. 

The  act  does  not  apply  to  cities  and  school  districts  having  a popu- 
lation of  over  65,000  in  1910,  which  had  a teachers’  pension  system 
organized  under  a statute  prior  to  the  time  this  act  took  effect. 

The  board  of  trustees  is  also  charged  with  the  administration  of 
the  state  institutions’  teachers’  pension  and  retirement  fund,  created  in 
1917.  The  provisions  for  the  administration  of  this  fund  are  practic- 
ally identical  with  the  provisions  for  the  administration  of  the  Illinois 
state  teachers’  pension  and  retirement  fund.  The  provisions  of  the  act 


apply  to  any  teacher  employed  in  any  state  educational,  charitable  or 
correctional  institution  (excepting  the  University  of  Illinois)  supported 
wholly  or  in  part  by  public  moneys  of  this  state.  The  administrative 
offices,  boards,  commissions  or  officers  of  the  various  schools  and  insti- 
tutions coming  under  the  act  are  required  to  transmit  quarterly  to  the 
state  treasurer  the  sums  retained  from  teachers’  salaries,  and  to  make 
an  annual  statement  to  him  within  seven  days  after  the  thirtieth  day 
of  June,  of  all  moneys  retained  in  accordance  with  the  act. 

Board  of  Voting  Machine  Commissioners.  This  board  was 
established  in  1903  and  consists  of  the  secretary  of  state  and 
two  persons  who  must  be  mechanical  experts  and  not  members  of  the 
same  political  party,  appointed  by  the  Governor  for  a term  of  four 
years,  but  removable  at  his  pleasure.  The  board  examines  and  reports 
on  the  accuracy,  efficiency,  capacity  and  safety  of  voting  machines. 
Voting  machines  not  approved  by  this  board  cannot  be  used  at  any 
election.  Each  of  the  mechanical  experts  is  entitled  to  $100  for  his 
compensation  and  expenses  in  making  an  examination  and  report,  to  be 
paid  by  the  person  or  corporation  applying  for  the  examination.  Of 
recent  years  no  work  has  been  done  by  this  commission  and  no  appoint- 
ments to  it  have  been  made. 

Centennial  Building  Commission.  The  Centennial  Building 
Commission  is  an  advisory  commission  which  was  created  in 
1917.  It  consists  of  seven  members,  the  Governor,  president  of  the 
senate,  speaker  of  the  house  of  representatives,  secretary  of  state,  and 
three  other  members  to  be  appointed  by  the  Governor. 

The  director  of  public  works  and  buildings  with  the  advice  of  this 
commission  is  empowered  to  determine  the  exact  location  of  the  cen- 
tennial memorial  building,  approve  the  plans  and  specifications  for  the 
building  and  supervise  its  construction.  The  building  is  to  cost  approx- 
imately $850,000.  It  is  planned  to  provide  for  a memorial  hall,  a Lin- 
coln memorial  room,  state  library,  state  historical  library,  state  mu- 
seum, a repository  for  state  archives,  the  department  of  public  instruc- 
tion, and  such  other  departments  as  may  be  determined  by  the  com- 
mission having  the  work  in  charge.  When  completed  the  building  will 
be  in  the  custody  of  the  secretary  of  state. 


5.  Partly  ex-officio  and  partly  elected  by  the  people. 

University  of  Illinois.  Prior  to  1885  the  University  of  Illi- 
nois was  known  as  the  Illinois  Industrial  University.  It  was  estab- 
lished in  1868.  It  is  subject  to  the  control  of  a board  of  trustees 
the  superintendent  of  public  instruction,  and  nine  other  trustees 
of  whom  three  are  elected  every  two  years  to  serve  for  a six-year  term. 
The  trustees  are  voted  for  on  the  same  ballots  with  the  state  officers  at 
the  general  elections.  In  case  of  vacancy  the  Governor  may  fill  such 
vacancy  by  appointment  until  the  next  general  election.  The  board  of 
trustees  may  appoint  an  executive  committee  of  three  members  which, 
subject  to  its  control,  shall  have  the  management  and  control  of  the 


677 


university  and  its  affairs,  when  the  board  is  not  in  session.  The  presi- 
dent, all  deans,  teachers,  scientific  staff  and  other  teachers,  one  private 
secretary,  and  one  stenographer  for  the  president  and  each  dean,  and 
students  employed  under  civil  service  rules,  are  exempt  from  civil 
service. 

Each  county  is  annually  awarded  one  scholarship  in  the  University 
of  Illinois,  upon  examination  held  by  the  county  superintendent.  In 
addition  to  this,  each  member  of  the  General  Assembly  may  nominate 
one  person  who,  upon  passing  the  examination  prescribed,  is  given  a 
certificate  of  scholarship  by  the  president  of  the  university.  All  such 
examinations  are  held  under  rules  and  regulations  prescribed  by  the 
president  of  the  university. 

The  University  of  Illinois  is  one  of  the  “Land  Grant”  colleges.  It 
receives  the  interest  from  money  received  from  the  sale  of  lands 
granted  under  an  act  of  congress  passed  in  1862  and  certain  appropri- 
ations made  by  Congress.  It  is  required  that  the  curriculum  of  the  col- 
leges accepting  the  benefits  of  the  act  shall  include  military  tactics,  and 
such  branches  of  learning  as  are  related  to  agriculture  and  mechanic 
arts.  No  portion  of  the  federal  fund  may  be  applied  for  the  erection, 
purchase,  preservation  or  repair  of  any  buildings.  An  annual  report  re- 
garding the  progress  of  each  college  must  be  transmitted  by  the  presi- 
dent to  all  the  other  colleges  coming  under  the  act  and  to  the  secretary 
of  the  interior,  and  the  secretary  of  agriculture.  All  sums  appropriated 
under  this  act  are  paid  by  the  secretary  of  the  treasury,  upon  the 
warrant  of  the  secretary  of  the  interior,  to  the  state  treasurer  or  other 
officer  designated  by  the  law  of  the  state,  who  upon  the  order  of  the 
trustees  of  the  college  pays  over  said  sums  to  the  treasurer  of  the  col- 
lege. The  treasurer  of  the  college  is  required  to  report  to  the  secretary 
of  agriculture  and  the  secretary  of  interior  on  or  before  September  1st 
of  each  year,  a detailed  statement  of  the  amount  received  and  of  its 
disbursement. 

The  trustees  of  the  university  are  required  biennially  before 
November  first  to  make  a report  to  the  Governor  for  the  period  closing 
with  the  fiscal  year  preceding  the  convening  of  the  General  Assembly. 
The  report  must  be  so  arranged  as  to  show  the  acts  and  doings  of  each 
fiscal  year  separately. 

By  a separate  act  passed  in  1909  the  trustees  of  the  university  are 
authorized  and  directed  to  establish  a department  of  mining  engineer- 
ing in  the  college  of  engineering. 

Under  an  act  passed  in  1911,  an  annual  tax  levy  of  one  mill  for 
each  dollar  of  assessed  valuation  of  taxable  property  is  levied  and  paid 
into  the  treasury  of  the  state,  and  set  apart  as  a fund  from  which 
money  may  be  appropriated  for  the  use  and  maintenance  of  the  Uni- 
versity of  Illinois.  In  1919  the  basis  of  assessed  value  was  changed 
from  one-third  to  one-half  of  full  value,  and  in  connection  with  this 
adjustment  the  unniversity  tax  was  reduced  from  one  mill  to  two-thirds 
of  one  mill. 


678 


6.  Partly  ex-officio  and  partly  appointed  by  an  ex-officio  board. 

Illinois  Library  Extension  Commission.  This  commission  was 
established  in  1909.  The  commissioners  of  the  state  library 
(the  Governor,  secretary  of  state,  and  superintendent  of  public 
instruction),  appoint  two  persons  who  together  with  the  state  librarian 
constitute  the  Illinois  library  extension  commission.  The  state 
librarian,  who  is  the  secretary  of  state,  is  ex-officio  chairman  of  the 
commission.  The  term  of  office  of  the  appointive  members  is  two 
years,  and  they  receive  no  compensation  except  traveling  expenses  and 
incidental  and  necessary  expenses  connected  with  the  work  of  the  com- 
mission. The  library  extension  commission  receives  the  advice  and 
counsel  of  the  state  library  commission  and  is  under  its  control. 

The  function  of  the  commission  is  to  give  advice  and  information 
to  existing  libraries  and  to  communities  or  persons  interested  in  start- 
ing new  libraries.  It  operates  traveling  libraries  and  acts  as  a clearing 
house  for  periodicals  contributed  for  the  use  of  local  libraries. 

The  commission  has  power  to  appoint  a library  organizer  who  is 
required  to  keep  informed  concerning  the  work  of  the  various  public 
libraries  in  the  state,  assist  in  starting  new  libraries,  and  at  the  end  of 
each  fiscal  year  make  a report  of  general  library  conditions  in  the  state, 
to  the  library  extension  commission. 


7.  Partly  ex-officio  and  partly  from  officers  and  members  of  var- 
ious societies. 

Illinois  Farmers'  Institute.  The  Illinois  farmers’  institute 
was  declared  to  be  a public  corporation  of  the  state  by  an  act 
passed  in  1895.  It  consists  of  three  delegates  elected  annually  in  each 
county  of  the  state  by  the  members  of  the  farmers’  institute  of  the 
county.  Its  affairs  are  managed  by  a board  of  directors  consisting  of 
the  state  superintendent  of  public  instruction,  dean  of  the  college  of 
agriculture  of  the  University  of  Illinois,  director  of  agriculture,  presi- 
dent of  the  state  horticultural  society,  president  of  the  state  dairy- 
men’s association,  and  one  member  from  each  congressional  district 
selected  by  the  delegates  therefrom  and  elected  at  the  annual  meeting 
of  the  institute,  one-half  each  year  for  a two-year  term. 

The  function  of  the  farmers’  institute  is  to  assist  and  encourage 
useful  education  among  the  farmers  and  develop  the  agricultural  re- 
sources of  the  state.  The  board  of  directors  have  the  sole  care  and 
disposal  of  all  sums  appropriated  to  the  farmers’  institute  by  the  state. 
The  farmers’  institute  makes  an  annual  report  to  the  Governor  of  its 
transactions.  This  report  includes  papers  pertaining  to  its  work  and 
addresses  made  at  the  annual  meeting  of  the  organization.  The  institute 
is  required  to  hold  an  annual  meeting  of  not  less  than  thrje  days’  dura- 
tion for  the  purpose  of  developing  greater  interest  in  agriculture. 

The  board  of  directors  has  power  to  fill  vacancies  in  the  board. 
It  organizes  by  the  election  of  a president,  vice-president,  treasurer  and 
secretary,  elected  for  a term  of  one  year  to  begin  on  July  first  following 
their  election.  The  secretary  and  treasurer  may  be  other  than  members 


G79 


of  the  board  of  directors.  The  board  has  power  to  employ  and  provide 
for  the  compensation  of  such  superintendents,  speakers  and  clerks  as 
may  be  deemed  proper  for  organizing  and  conducting  its  work.  The 
salary  of  the  secretary  is  $2,000  a year,  payable  in  monthly  installments. 

The  status  of  the  Illinois  farmers’  institute  and  of  appropriations 
made  to  it,  was  defined  in  Illinois  Farmers’  Institute  v.  Brady,  267  111. 
98  (1915).  This  case  involved  a petition  for  a writ  of  mandamus  com- 
manding the  auditor  of  public  accounts  to  draw  warrants  on  the  state 
treasurer  without  compliance  by  it  with  the  appropriations  act  of  1913 
or  the  state  civil  service  law.  The  Supreme  Court  held:  (1)  That  the 
fact  that  the  act  creating  the  farmers’  institute  provided  that  its 
board  of  directors  should  have  sole  care,  and  disposal  of  all  sums  that 
may  be  appropriated  to  it,  does  not  exempt  it  from  the  provisions  of 
the  appropriation  act  of  1913  requiring  pay  rolls  for  employes  of  such 
corporations  and  itemized  bills  before  warrants  may  be  drawn  by  the 
auditor  of  public  accounts.  (2)  The  farmers’  institute,  its  officers,  em- 
ployes and  board  of  directors  are  not  in  the  service  of  the  state  and 
are,  therefore,  not  subject  to  the  provisions  of  the  state  civil  service 
act.  (3)  Voluntary  organizations  cannot  appoint  to  office  in  the  state 
government,  nor  can  the  General  Assembly  give  them  power  to  do  so. 
(4)  However,  appropriations  to  individuals  and  voluntary  associations 
not  in  the  service  of  the  state,  and  for  expenses  which  would  not  come 
within  a narrow  definition  of  the  term,  “expenses  of  the  state  govern- 
ment,” as  used  in  the  appropriation  act,  are  fairly  included  in  such  term 
if  they  are  proper  charges,  assumed  in  the  discretion  of  the  General 
Assembly,  as  expenses  of  the  state  government, 


8.  Partly  ex-officio  and  partly  appointed  by  a constitutional  officer. 

Teachers  Examining  Board.  The  teachers’  examining  board 
was  created  in  1913,  and  is  composed  of  five  members.  The 
superintendent  of  public  instruction  is  ex-officio  chairman  of  this  board, 
and  he  appoints  one  person  who  is  engaged  in  educational  work,  for  a 
four-year  term,  and  three  county  superintendents,  each  to  serve  three 
years,  one  to  be  appointed  annually  by  the  superintendent  of  public 
instruction  upon  the  recommendation  of  the  county  superintendent’s 
section  of  the  state  teachers’  association  at  its  annual  meeting. 

The  function  of  the  board  is  to  administer  the  law  concerning  the 
certification  of  teachers  in  respect  to  county  certificates.  The  board  is 
empowered  to  prescribe  rules  for  holding  the  examinations,  and  pre- 
pare uniform  questions  for  all  the  state  and  forward  them  to  the 
county  superintendents  under  seal.  All  examination  papers  must  be 
forwarded  by  the  county  superintendent  to  the  teachers’  examining 
board  to  be  graded.  Grades  are  returned  to  the  county  superintendent, 
who  is  empowered  to  issue  the  certificates  under  the  rules  prescribed 
by  the  board.  The  board  may  require  county  superintendents  to  make 
quarterly  and  annual  reports  of  such  data  concerning  certification  of 
teachers  as  it  may  prescribe,  and  may  make  all  necessary  rules  and 
regulations  for  the  proper  administration  of  the  act. 


680 


9.  Appointed  by  the  University  of  Illinois. 

Board  of  Examiners  in  Accountancy.  The  University  of 
Illinois  is  charged  with  the  examination  of  applicants  and  the 
issuance  of  certificates  as  certified  public  accountants,  by  an  act  passed 
in  1903.  The  university  appoints  a board  of  three  examiners,  two  of 
whom  must  be  accountants  in  active  practice  in  the  state,  and  the  third 
may  be  either  an  accountant  or  an  attorney  skilled  in  commercial  law. 
Their  terms  are  three  years,  and  they  receive  $10  a day  for  time  spent, 
and  their  traveling  expenses.  A university  committee  of  three  mem- 
bers is  also  appointed,  which  serves  without  compensation  and  has 
charge  of  preliminary  arrangements  connected  with  the  examinations. 

The  board  prepares  exami'Uation  questions,  conducts  the  examina- 
tions, examines  the  papers  and  certifies  the  results  to  the  university 
committee.  On  receipt  of  this  certification,  the  successful  candidates 
are  recommended  to  the  president  of  the  university  who  issues  their 
certificates.  The  university  may  revoke  any  certificate  for  unprofes- 
sional conduct  or  other  sufficient  cause,  on  notice  and  after  a hearing. 
A fee  of  $25  is  collected  from  each  applicant  and  from  the  fees  received 
the  university  pays  all  expenses  incident  to  the  examinations. 


VI.  ANALYSIS  OF  THE  POWERS  AND  FUNCTIONS  OF 
THE  CONSTITUTIONAL  STATE  OFFICERS. 


Governor.  The  constitution  vests  the  supreme  executive 
power  of  the  state  in  the  Governor.  The  actual  operation  of  the  political 
system  prescribed  by  the  constitution  and  various  statutory  enactments 
has  curtailed  this  supreme  executive  power  and  often  made  the  powers 
of  the  Governor  ineffectual  in  practice.  An  analysis  of  his  powers 
may  point  out  some  of  the  defects  in  the  system. 

Relation  to  the  General  Assembly.  The  powers  of  the 
Governor  in  relation  to  the  General  Assembly  have  been  out- 
lined in  detail  in  an  earlier  chapter  of  this  bulletin.  Briefly,  he  has 
power  to  convene  the  General  Assembly  on  extraordinary  occasions, 
to  adjourn  the  two  houses  in  case  of  a disagreement  as  to  time  of  ad- 
journment, to  transmit  messages  concerning  the  condition  of  state  af- 
fairs and  his  recommendation  concerning  legislation  to  the  General 
Assembly,  to  submit  a budget  (by  legislation  of  1917),  and  to  veto  bills 
passed  by  the  General  Assembly.  He  in  turn  is  dependent  on  the 
senate  for  confirmation  of  many  of  his  appointments.  The  Governor 
wields  a larger  influence  over  legislation  than  the  enumeration  of  his 
powers  would  seem  to  indicate.  By  his  authority  to  recommend  mea- 
sures'which  he  believes  to  be  of  importance  and  by  his  freedom  to  sup- 
port his  recommendations  with  argument  and  appeal,  he  may  and  fre- 
quently does  occupy  a position  of  leadership  in  legislation.  The  extent 
to  which  this  leadership  is  recognized  is  shown  by  the  fact  that  the  two 
houses  usually  give  preference  to  administration  measures. 

It  has  been  suggested  that  the  Governor  should  be  empowered  to 
add  additional  subjects  after  the  General  Assembly  has  convened,  to 
those  named  in  the  original  call  for  a special  session.  The  power  to 
call  a special  session  is  given  to  the  Governor  in  forty-five  states,  and 
in  only  fifteen  states  is  he  required  to  state  the  purpose  of  the  meeting. 
West  Virginia  has  the  additional  provision  that  the  Governor  must  call 
a special  session  on  the  application  in  writing  of  three-fifths  of  the 
members  of  each  house.1 

The  Governor  and  all  civil  officers  of  the  state  are  liable  to  im- 
peachment. The  charges  must  be  preferred  by  the  house  of  repre- 
sentatives, and  the  impeachment  must  be  tried  by  the  senate.  No 
Governor  of  this  state  has  ever  been  impeached. 

Increased  control  over  appropriations  have  recently  been  given  to 
the  Governor  in  several  states.  Budget  amendments  were  adopted  in 
Maryland  in  1916,  and  in  Massachusetts  and  West  Virginia  in  1918. 

1 Massachusetts  constitutional  convention  bulletin  No.  3.  The  abolition  of 
the  governor’s  council  with  a supplement  on  the  statutory  powers  and  duties 
of  the  governor  and  council  1918,  p.  117. 


682 


In  Maryland  and  West  Virginia  the  General  Assembly  is  denied  the 
power  to  increase  items  in  estimates  presented  by  the  Governor.  In 
Massachusetts  the  power  of  the  legislative  body  is  not  curtailed  but 
practically  the  same  result  is  obtained  by  giving  the  Governor  the  power 
to  disapprove,  or  reduce,  items  or  parts  of  items  in  any  bill  appropria- 
ting money.  The  Civil  Administrative  Code  of  Illinois  provides  for  an 
executive  budget  and  the  provisions  are  workable  and  effectual.  There 
will  probably  be  some  agitation  in  the  convention  for  the  adoption  of  a 
budget  provision.  Since  Illinois  now  has  a budget  prepared  under  au- 
thority of  statutory  provisions  which  have  proved  workable,  the  adop- 
tion of  a detailed  constitutional  budget  provision  hardly  seems  neces- 
sary. The  statutory  provisions  for  a budget  are  more  flexible  and 
better  adapted  to  the  ever  changing  financial  needs  of  the  state. 

The  veto  power  of  the  Governor  is  analyzed  in  the  bulletin  dealing 
with  the  legislative  department. 

In  actual  operation,  these  constitutional  and  statutory  provisions 
concerning  the  relation  of  the  Governor  and  the  General  Assembly 
have  some  results  other  than  those  intended.  For  instance,  the  hope 
of  receiving  appointments  from  the  Governor  may  sometimes  cause  a 
member  to  support  administration  measures.  The  Governor  in  turn 
may  find  it  advantageous  to  help  or  at  least  not  to  hinder  the  progress 
of  certain  measures,  in  order  to  have  his  appointments  confirmed  by 
the  senate.  Difficulties  are  most  apt  to  arise  when  the  Governor  and 
majority  party  in  the  Senate  are  not  of  the  same  political  party. 

Power  of  Appointment.  The  power  of  the  Governor  over 
the  executive  administration  includes  his  power  of  appointment 
and  removal,  his  duty  to  see  that  the  laws  are  faithfully  executed,  and 
the  direction  and  control  of  certain  acts  of  subordinate  officials.  The 
increase  in  the  importance  of  the  various  appointive  administrative  offi- 
cers has  made  the  power  of  appointment  the  most  effectual  of  the  Gov- 
ernor’s powers. 

Limitations  have  been  placed  upon  the  appointing  power  by  pre- 
scribing certain  qualifications  in  the  statutes,  by  delegating  the  power 
in  a few  cases  to  ex-officio  boards  of  which  the  Governor  is  a member, 
and  by  requiring  the  consent  of  the  Senate,  in  the  case  of  a number 
of  appointments.  The  following  are  typical  examples  of  the  qualifica- 
tions prescribed  by  statute:  (1)  The  adjutant  general  must  have  had 

service  as  an  officer  for  not  less  than  five  years,  at  least  three  of  which 
shall  have  been  in  the  line;  (2)  the  commissioners  of  the  Illinois  State 
Historical  Library  must  be  well  versed  in  the  history  of  the  state  and 
qualified  by  habit  and  disposition  to  discharge  the  duties  of  the  office; 
(3)  and  the  minority  party  must  be  represented  in  appointments  to  the 
Civil  Service  Commission.  Definite  qualifications  of  the  first  type  may 
be  of  value  where  the  work  of  the  department  is  of  a professional 
character.  In  practice  an  indefinite  qualification  like  the  second  type  is 
practically  a nullity.  The  third  type  of  limitation  providing  for  minor- 
ity representation  on  various  boards  is  one  which  has  been  quite  gen- 
erally condemned.  It  gives  the  Governor  the  opportunity  to  use  those 
appointments  to  exercise  influence  over  the  minority  party  in  the  Gen- 
eral Assembly. 


683 


Another  limitation  of  the  power  of  appointment  is  effected  through 
its  delegation  to  an  ex-officio  board.  The  appointment  of  the  library 
extension  commission  by  an  ex-officio  board  of  which  the  Governor  is 
a member,  is  the  only  case  of  this  kind  in  our  state  government.  In 
practice  the  Governor  seldom  takes  much  part  in  the  affairs  of  an  ex- 
officio  board,  whose  members  are  independent  of  him,  consequently  he 
has  little  power  over  its  appointments.  We  also  have  boards  in  this 
state  which  are  partly  ex-officio  and  partly  appointed  by  the  Governor, 
which  are  in  actual  operation  quite  independent  of  him.  The  Governor 
and  one  other  state  officer  are  ex-officio  members  of  the  board  of 
trustees  of  the  University  of  Illinois,  but  they  only  constitute  a part  of 
its  membership.  The  other  members  are  elected  by  the  people  and 
are  independent  of  the  Governor. 

The  requirement  of  the  consent  of  the  Senate  to  appointments  by 
the  Governor  is  an  important  limitation  on  the  power  of  appointment. 
All  the  officers  under  the  Civil  Administrative  Code,  and  the  Civil  Ser- 
vice Commission,  the  court  of  claims,  the  trustees  of  the  historical 
library,  the  Lincoln  park  commissioners,  the  West  Chicaga  park  com- 
missioners, and  a number  of  others  are  appointed  subject  to  confirma- 
tion by  the  senate.  The  following  quotation  contains  some  criticism 
of  this  limitation  on  the  power  of  appointment : 

“The  less  dependent  the  Governor  is  upon  senatorial  confirmation 
of  necessary  appointments  the  more  effectively  he  can  use  his  power  to 
recommend  measures  to  the  legislature  and  to  veto  undesirable  legisla- 
tion; in  other  words,  the  freer  he  is  to  develop  the  possibilities  of 
his  constitutional  position  as  special  representative  of  the  whole  peo- 
ple . . . ” 

“In  general,  however,  the  power  of  appointment,  subject  to  sena- 
torial confirmation  seems  to  be  a source  of  weakness  rather  than  of 
strength  to  state  governors.”2 

Appointment  without  the  consent  of  the  Senate  is  not  uncommon 
in  state  government.  Tn  this  state  the  adiutant  general,  the  commission 
for  uniformitv  of  legislation  in  the  United  States,  the  penitentiary  co^" 
mission,  and  the  constitutional  state  officers  in  case  of  vacancies,  are 
appointed  without  the  consent  of  the  Senate.  In  practically  all  the 
states,  officers  of  the  militia,  in  New  York  certain  of  the  trial  judges 
for  appellate  work ; and  ad  interim  appointments  in  case  of  vacancies 
in  practically  all  the  states  are  not  subject  to  confirmation  by  the  Sen- 
ate. In  Virginia  none  of  the  appointments  of  the  governor  are  subject 
to  senatorial  confirmation,  except  the  corporation  commissioners.  In 
California  the  five  railroad  commissioners  are  appointed  without  the 
consent  of  the  Senate. 

Pozuer  of  Removal.  The  Governor  has  power  to  remove  any 
officer,  whom  he  may  appoint,  for  incompetency,  neglect  of  duty, 
or  malfeasance  in  'office.  He  may  remove  officers  appointed  with,  or 
without  the  consent  of  the  senate,  and  the  courts  cannot  dictate  in 
what  manner  he  shall  perform  the  duty.  His  power  of  removal  is  in 
fact  more  complete  than  his  power  of  appointment  since  he  is  able  to 
remove  officers  whose  appointments  must  be  confirmed  by  the  senate.3 

2 Holcombe,  A.  N.  State  government  in  the  United  States  1916,  p.  338-342. 

* Wilcox  v.  People,  90  111.,  186  (1878). 


684 


The  provision  of  the  Illinois  constitution  concerning  removal  of 
officers  does  not  go  far  enough  to  give  him  a comprehensive  and 
effective  control  over  the  state  administration.  To  accomplish  this 
object,  it  has  been  suggested  that  the  Governor  should  be  given  the 
power  to  remove  elective  as  well  as  appointive  officials.  The  Pennsyl- 
vania constitution  of  1873  gives  the  governor  power  to  remove  officers 
whom  he  may  appoint,  and  also  many  elective  officers  “on  the  address 
of  two-thirds  of  the  senate.”  The  constitution  of  Michigan  gives  the 
governor  the  power  to  remove  any  state  officer,  except  legislative  or 
judicial,  during  the  recess  of  the  legislature,  for  gross  neglect  of  duty 
or  corrupt  conduct,  or  misfeasance  or  malfeasance  in  office. 

Control  of  Other  Officials.  In  addition  to  his  power  of  removal, 
the  Governor  has  other  methods  of  control  over  officers  after  ap- 
pointment. Pie  can  control  their  expenditures  through  the  ex- 
ecutive budget,  and  his  veto  power.  Pie  can  require  information 
from  them  in  writing  concerning  the  affairs  of  their  offices  and  any 
officer  who  makes  a false  report  is  guilty  of  perjury.  This  power  is, 
however,  of  little  value  as  a power  to  be  exercised  against  other  elec- 
tive state  officers.  Various  statutes  require  his  approval  of  official 
bonds,  the  letting  of  contracts,  and  vouchers  for  expenditures.  All  the 
officers  of  the  code  being  appointed  by  the  Governor  and  responsible  to 
him,  he  has  an  effectual  control  over  them. 

Law  Enforcement.  The  constitutional  provision  that  the  Gov- 
ernor shall  see  that  the  laws  are  faithfully  executed  gives  him 
in  actual  operation  but  little  power  over  the  executive  department. 
The  power  is  vague  and  is  not  considered  as  giving  the  Governor  any 
definite  means  of  compelling  other  officials  to  act.  In  reality  the  exe- 
cution of  the  laws  is  largely  in  the  hands  of  the  attorney  general,  the 
state’s  attorneys  and  the  sheriffs.  They  are  the  real  executives  as 
far  as  responsibility  for  the  enforcement  of  laws  is  concerned.  The 
state’s  attorneys  and  the  sheriffs  are  locally  elected.  Election  by  the 
people,  the  imposition  of  statutory  duties,  and  the  vesting  of  an  inde- 
pendent official  discretion,  have  removed  these  officers  from  the  control 
of  the  executive.  The  proposal  of  appointment  of  the  attorney  general 
by  the  Governor  will  be  discussed  later  in  this  chapter.  In  this  state 
the  Governor  has  the  power  to  remove  a sheriff  who  allows  a prisoner 
to  be  taken  from  his  cutody  by  a mob.  In  New  York,  Michigan,  Wis- 
consin and  a few  other  states,  the  Governor  may  remove  sheriffs  and 
district  attorneys  for  neglect  of  duty  or  inefficiency.4  An  Oregon  plan 
of  reorganization  of  state  government  proposed  that  the  Governor  be 
given  power  to  appoint  sheriffs  and  district  attorneys.5 

The.  enforcement  of  law  by  local  officers  is  a matter  of  direct  con- 
cern to  the  state,  and  in  case  of  neglect  of  duty,  it  has  been  urged  that 
the  Governor  should  be  given  the  right  to  remove  such  local  officials. 
To  do  this  may  be  regarded  as  violating  the  principles  of  local  self- 
government  and  municipal  home  rule.  Municipal  home  rule,  however, 
will  deal  primarily  with  the  matters  of  purely  local  concern.  Any  state 

4 For  a discussion  of  law  enforcement  see  McLaughlin  and  Hart.  Cyclopedia 
of  American  government.  Removal  of  elected  officials,  U.  S.,  Vol.  3,  p.  178; 
Mathews,  J.  M.,  Principles  of  American  state  administration,  p.  105-109. 

5 Beard  and  Schultz.  Documents  on  the  initiative,  referendum  and  recall. 
VI  Appendix.  The  Proposed  Oregon  System,  p.  349-383. 


685 


control  over  local  offices  is  intended  primarily  to  be  exercised  as  a 
means  of  control  over  the  performance  of  state  functions  by  local  offh 
cers.  The  problem  of  the  independence  of  state’s  attorneys  will  be  dis- 
cussed later  in  this  chapter. 

On  the  other  hand,  the  Governor  has  been  given  the  appointment 
of  some  local  officers,  who  are  of  no  aid  in  the  execution  of  the  laws, 
and  who  deal  with  matters  of  purely  local  concern.  With  the  advice 
and  consent  of  the  senate,  he  appoints  the  commissioners  of  Lincoln 
park  and  the  West  Chicago  park  commissioners.  These  commis- 
sioners exercise  functions  which  deal  entirely  with  local  park  dis- 
tricts, and  the  commissioners  should  properly  be  appointed  by  local 
authorities.  A number  of  other  separate  park  governments  have  been 
created  within  the  city  of  Chicago  and  there  is  a growing  agitation 
to  consolidate  them  into  one  district.  An  act  consolidating  the  park 
districts  of  Chicago  was  enacted  in  1915,  but  it  was  rejected  when 
submitted  to  the  people.  The  Chicago  bureau  of  public  efficiency  in 
its  report  on  “The  park  governments  of  Chicago,”  says.  “The  at- 
tempts to  so  organize  the  several  park  districts  as  to  keep  them  out  of 
politics  has  been  futile,  especially  in  the  West  park  district.  Making 
the  West  and  Lincoln  park  boards  appointive  by  the  Governor  has 
only  resulted  in  a different  brand  of  politics — that  incident  to  state 
interests  and  factions  and  less  susceptible  of  local  control.  The  con- 
ditions should  be  faced  that  politics  will  enter  to  some  extent  into  any 
kind  of  a park  organization.  This  being  true,  it  is  submitted  that  the 
plan  of  organization  should  be  such  as  to  be  most  susceptible  of 
autonomy  and  local  control.  It  is  easier  to  control  one  district  than 
ten.”6 

The  status  of  the  West  Chicago  park  commissioners  was  defined 
in  Wilcox  vs.  People,  90  111.,  186  (1878).  Referring  to  the  Governor’s 
power  to  remove  these  commissioners,  the  Supreme  Court  said,  “The 
members  of  the  board  of  West  Chicago  park  commissioners  are  agents, 
by  whom,  in  part,  the  people  of  the  state  carry  on  the  government. 
Their  functions  are  essentially  political,  and  concern  the  state  at  large, 
although  such  functions  are  to  be  discharged  within  the  town  of  West 
Chicago.” 

In  the  enforcement  of  the  laws  the  Governor  also  has  the  power 
to  call  out  the  state  militia.  As  an  instrument  of  the  police  power  of 
the  state,  the  militia  has  been  subjected  to  considerable  criticism  in 
recent  years.  At  the  1919  session  of  the  General  Assembly  a bill  for 
the  establishment  of  a state  police,  modeled  on  the  Pennsylvania  and 
New  York  state  constabulary,  evoked  considerable  interest  but  failed 
to  be  enacted.  In  this  connection  it  may  be  interesting  to  note  that  the 
governors  appoint  the  police  commissioners  of  two  of  the  more  popu- 
lous cities  of  the  country,  Boston  and  St.  Louis  and  that  police  com- 
missioners for  Baltimore  are  chosen  by  the  Maryland  state  legislature. 
In  some  states  the  governors  have  been  given  the  power  to  remove  cer- 
tain municipal  officers  as  well  as  county  officers. 

The  election  of  so  many  independent  state  officers  makes  the 
Governor’s  power  to  see  that  the  laws  are  faithfully  executed  a nullity. 

8 Chicago  bureau  of  public  efficiency.  The  park  governments  of  Chicago. 
1911,  p.  174. 


686 


A very  small  measure  of  control  over  them  is  conferred  on  the  Gov- 
ernor, but  even  when  such  control  is  conferred  on  him,  it  is  ineffectual 
in  practice.  I hey,  too,  are  elected  by  the  people  and,  in  fact,  respon- 
sible to  the  people  alone.  They  have  been  given  by  statute  the  ad- 
ministration of  many  important  laws,  and  these  laws  are  administered 
independently  of  the  Governor.  For  instance,  the  state  highway  di- 
vision, operates  under  the  code,  and  through  it  the  Governor  has  direct 
control  of  highway  administration.  However,  the  funds  expended  for 
highway  purposes  are  largely  the  receipts  from  automobile  licenses. 
The  secretary  of  state  has  been  charged  with  the  licensing  of  auto- 
mobiles, and  exercises  this  function  in  entire  independence  of  the 
Governor,  who  is  only  responsible  to  the  people  for  results  in  highway 
construction  commensurate  with  the  amount  of  automobile  license  fees 
collected. 

Pardoning  Power.  The  Governor,  through  his  pardoning 
power,  has  an  authority  which  bears  a close  relation  to  the  administra- 
tion of  justice.  The  constitution  says:  “The  Governor  shall  have 

power  to  grant  reprieves,  commutations  and  pardons,  after  conviction, 
for  all  offenses,  subject  to  such  regulations  as  may  be  provided  by  law 
relative  to  the  manner  of  applying  therefor.”  In  accordance  with  this 
provision,  the  statutes  require  application  for  pardons  to  be  made 
through  the  division  of  pardons  and  paroles  in  the  department  of  public 
welfare.  Its  action  on  such  applications  is  only  advisory  to  the  Gov- 
ernor. 

The  President  of  the  United  States  has  “power  to  grant  reprieves 
and  pardons  for  offenses  against  the  United  States  except  in  cases  of 
impeachment.”  The  United  States  constitution  does  not  forbid  pardon 
before  conviction  as  the  Illinois  constitution  does.  With  the  exception 
of  six  states  (Kansas,  Kentucky,  Maryland,  Oregon,  Vermont,  Wash- 
ington), the  constitutions  expressly  permit  the  exercise  of  the  pardon- 
ing power  only  after  conviction. 

In  most  of  the  state  constitutions,  the  pardoning  power  is  divided 
into  (1)  commutation  of  sentences;  (2)  pardons,  remission  of  fines, 
penalties  and  forfeitures;  and  (3)  granting  of  reprievs.  In  more 
than  half  of  the  states  the  power  to  commute  sentences,  and  to  pardon, 
except  in  cases  of  treason  or  impeachment,  or  both,  and  to  remit  fines 
and  forfeitures  is  given  to  the  Governor  acting  alone.  In  forty  states 
he  has  exclusive  power  to  grant  reprieves.  In  most  instances  his  power 
to  exercise  clemency  is  subject  to  regulations  prescribed  by  law,  such 
as  the  Illinois  provision  concerning  the  manner  of  applying  for  pardons. 
Upon  the  recommendation  of  the  board  of  pardons  or  in  conjunction 
with  it,  or  with  the  approval  of  the  board  of  pardons  and  the  council, 
the  Governor  has  the  power  to  commute  sentences  in  seven  states,  to 
pardon  in  nine  states,  to  remit  fines  and  forfeitures  in  six  states,  and  to 
grant  reprieves  in  three  states.7  Connecticut  seems  to  be  the  only  state 
in  which  the  power  to  pardon  is  given  to  the  legislature.  In  most  states 
the  constitution  requires  that  the  Governor,  or  the  board  of  pardons, 
where  it  has  exclusive  power  and  the  Governor  is  not  a member  of  it, 

7 Massachusetts.  Constitutional  convention  bulletin  No.  3.  The  abolition 
of  the  governor’s  council  with  a supplement  on  the  statutory  powers  and  duties 
of  the  governor  and  council,  p.  118-119. 


687 


shall  report  to  the  legislature,  at  each  session  thereof,  biennially  or 
annually,  each  case  of  commutation,  pardon,  remission  or  reprieve,  and 
certain  specific  information  concerning  it.  The  Illinois  constitution  of 
1848  had  a similar  provision. 

Several  state  constitutions  except  cases  of  treason,  with  a clause 
permitting  temporary  reprieves  in  such  cases.  In  California  any  one 
convicted  twice  of  a felony  can  only  be  pardoned  upon  a written  recom- 
mendation of  a majority  of  the  judges  of  the  Supreme  Court.  In  Ver- 
mont murder  cases  are  excepted  as  well  as  treason  and  impeachment 
cases.  In  Oregon  treason  cases  are  excepted,  but  impeachment  cases 
are  not.  In  Texas,  those  convicted  of  treason  can  be  pardoned  only 
with  the  consent  of  the  Senate.8 

Appointment  of  Judges.  The  Governor  has  the  power  to 
appoint  judges  in  this  state  where  vacancies  occur,  when  the  unex- 
pired term  of  office  does  not  exceed  one  year.9 

Summary.  From  this  discussion  of  the  powers  of  the 
Governor,  it  is  apparent  that,  while  his  influence  in  matters  of  legis- 
lation is  important  and  increasing,  that  outside  of  the  departments 
created  by  the  Civil  Administrative  Code  his  control  over  state  admin- 
istration is  far  from  complete.  He  has  little  effective  power  of  direc- 
tion over  many  administrative  officials  and  his  power  of  appointment 
and  removal  is  too  restricted  to  be  effective.  His  power  to  enforce  the 
laws  of  the  state  is  particularly  weak.  The  Civil  Administrative  Code 
has  strengthened  his  position  as  the  actual  head  of  the  executive  de- 
partment, but  there  is  still  a large  field  of  state  administration  over 
which  he  has  slight  control. 


Lieutenant  Governor.  The  lieutenant  governor  is  the  only  con- 
stitutional state  officer  who  performs  no  statutory  duties  or  functions. 
He  is  an  executive  officer  with  normally  legislative  functions.  Except 
in  the  case  of  succession  to  the  governorship,  the  role  which  the 
lieutenant  governor  plays  is  a relatively  unimportant  one.  He  presides 
over  the  senate,  but  has  no  part  in  the  deliberations  of  that  body  and 
no  vote  except  when  the  senate  is  equally  divided. 

In  four  states,  namely,  Arizona,  Oregon,  Utah  and  Wyoming,  it 
is  provided  that  the  secretary  of  state  shall  succeed  to  the  governorship. 
The  constitutions  of  thirty-five  states  of  the  union  provide  for  the  elec- 
tion of  a lieutenant  governor.  In  the  remaining  states10  the  succession 
to  the  governorship  is  vested  in  some  other  officer,  usually  the  president 
of  the  senate  or  the  speaker  of  the  house.* 11  The  question  has  been 
raised  concerning  the  necessity  for  the  election  of  an  officer  whose  main 
function  is  to  fill  a vacancy  in  another  position.  It  has  been  pointed 
out  that  vice  presidents  of  the  United  States  and  lieutenant  governors 
of  the  states  have  usually  represented  a somewhat  different  element 

8 For  a discussion  of  the  pardoning  power  see  assuchusetts  constitutional 
convention  bulletin  No.  4.  The  pardoning  power;  Fairlie,  J.  A.  The  state  gov- 
ernor, p.  26-2 8. 

9 Const.  1870,  Art.  VI,  Sec.  32. 

10  Arizona,  Arkansas,  Florida,  Georgia,  Maine,  Maryland,  New  (Hampshire, 
New  Jersey,  Oregon,  Tennessee,  Utah,  West  Virginia  and  Wyoming. 

11  Massachusetts.  Constitutional  convention  bulletin  No.  3.  The  abolition 
of  the  governor’s  council  with  a supplement  on  the  statutory  powers  and  duties 
of  the  governor  and  council,  p.  119. 


688 


or  point  of  view  from  the  presidents  and  the  governors;  and  that  a 
change  of  policy  in  administration  is  more  likely  to  arise  when  the 
chief  executive  is  succeeded  by  such  an  official  than  if  he  were  suc- 
ceeded by  an  officer  appointed  by  the  executive  himself.  The  problem 
to  be  decided  in  this  matter  is  the  necessity  of  retaining  the  office  of 
lieutenant  governor  as  a separate  elective  office. 


Secretary  of  State.  Constitutional  provisions  prescribe  some 
of  the  powers  and  duties  of  the  secretary  of  state,  but  most  of  the 
functions  performed  by  him  are  prescribed  by  statute.  They  cover  a 
wide  variety  of  matters,  which  may  be  classified  under  the  following 
headings : 

1.  Keeper  of  records. 

2.  Custodian  of  building  and  grounds. 

3.  Furniture  and  supplies. 

4.  Elections. 

5.  Corporations. 

6.  Automobile  licenses. 

7.  Membership  on  ex-officio  boards  and  offices. 

8.  Miscellaneous. 

From  this  classification  it  is  evident  that  the  powers  of  the  secre- 
tary of  state  form  a heterogeneous  group  of  functions  not  closely  re- 
lated to  each  other.  Many  of  these  matters  have  no  necessary  connec- 
tion with  the  office  of  secretary  of  state  and  instances  may  be  found 
in  other  states  where  most  of  his  functions,  except  that  of  keeper  of 
certain  official  records,  are  given  to  some  other  officer  or  board.  Most 
of  his  duties  are  of  a ministerial  character,  and  unlike  the  functions  of 
the  attorney  general,  do  not  ordinarily  involve  the  exercise  of  discre- 
tionary power. 

The  secretary  of  state  or  the  secretary  of  the  commonwealth  is 
an  executive  officer  found  in  all  the  states.  He  is  elected  by  popular 
vote  in  all  states  except  Delaware,  Maryland,  New  Jersey,  Pennsyl- 
vania and  Texas,  in  which  states  he  is  appointed  by  the  Governor  with 
the  advice  and  consent  of  the  senate. 

The  report  of  the  efficiency  and  economy  committee  said : 

‘-‘Some  of  the  functions  of  the  Secretary  of  State  are  closely  re- 
lated to  those  of  other  independent  officers  and  boards ; and  have  been 
considered  in  other  reports  prepared  for  the  Efficiency  and  Economy 
Committee.  In  a general  reorganization  of  the  state  service  such  posi- 
tions might  well  be  transferred  from  the  Secretary  of  State  and  asso- 
ciated with  other  authorities  dealing  with  the  same  general  subject. 
Thus  the  supervision  over  corporations  could  be  combined  with  the 
supervision  over  banks,  insurance  companies,  and  public  utlities  in  a 
Department  of  Trade  and  Commerce  as  proposed  in  another  part  of 
this  survey. 

“If  the  Secretary  of  State  were  made,  as  he  should  be.  an  officer 
appointed  by  the  Governor,  the  loss  of  some  of  his  present  functions 
could  be  offset  by  the  transfer  to  his  department  of  other  services  and 


by  giving  this  department  more  complete  control  over  some  matters, 
over  which  it  has  now  only  a partial  control.”12 

With  the  organization  of  a department  of  public  works  and  build- 
ings under  the  civil  administrative  code  the  control  over  buildings  is 
partially  vested  in  this  department,  and  partially  under  the  secretary  of 
state. 

The  secretary  of  state  serves  on  eight  ex-officio  boards  and  offices. 
The  most  important  office  which  he  holds  ex-officio  is  librarian  of  the 
state  library.  From  1845  to  1862  he  served  as  superintendent  of  public 
instruction  ex-officio. 

The  supervision  of  corporations  was  at  first  very  generally  given 
to  the  secretaries  of  state  in  the  various  states,  but  there  has  been  a 
definite  tendency  to  place  this  supervision  under  separate  boards  or 
officers  of  late  years. 


Auditor  of  Public  Accounts.  The  constitution  provides  that 
“No  money  shall  be  drawn  from  the  treasury  except  in 
pursuance  of  an  appropriation  made  by  law,  and  on  the 
presentation  of  a warrant  issued  by  the  auditor  thereon.” 
The  auditor  also  has  supervision  over  banks,  and  building  and  loan 
associations,  a function  quite  distinct  from  the  audit  of  public  accounts. 
Under  the  present  system,  the  auditor  is  responsible  for  the  audit  of 
his  own  expenditures  as  banking  commissioner.  The  tendency  to  place 
unrelated  functions  under  the  auditor  is  discussed  in  “The  Constitu- 
tion and  government  of  the  State  of  New  York.”  Discussing  the  office 
of  comptroller,  which  corresponds  to  our  state  auditor,  it  says: 

“Here  we  have  an  auditing  office,  established  as  a part  of  the  con- 
stitutional machinery  for  fixing  and  enforcing  administrative  respon- 
sibility, and  yet  laboring  under  administrative  duties  assigned  to  it  by 
statute,  the  effect  of  which  is  to  destroy  the  disinterestedness  of  its 
audit  and  verification.”13 

The  auditor  is  not  the  only  state  officer  whose  function  it  is  to 
audit  accounts.  The  Governor  is  charged  with  the  examination  of  the 
accounts  of  the  Illinois  Central  Railroad  to  determine  that  the  state 
receives  its  share  of  the  company’s  earnings.14 

“All  of  the  states  have  made  provision  for  auditing  the  receipts 
and  payments  of  the  stateNUvsury ; and  in  all  the  states  except  three 
a separate  state  officer  and  department  has  been  established  for  this 
purpose.  In  Wisconsin  and  Oregon  the  Secretary  of  State  acts  as 
Auditor;  and  in  New  Hampshire  v^irrants  on  the  treasury  are  drawn 
by  the  Governor,  who  annually  app'^infs  a committee  of  two  or  more 
members  of  the  executive  council,  to  afidjt^  the  accounts  of  the  state 
treasurer 

“This  official  [the  Auditor]  is  elected  by  popular  vote  in  all  of  the 
states  except  New  Jersey  and  Tennessee,  where  he  is  chosen  by  the 

12  Illinois.  Efficiency  and  Economy  Committee.  A report  on  the  secretary 
of  state  and  law  officers.  In  its  Report,  p.  951-952. 

13  New  York  state  constitutional  convention  commission.  The  constitution 
and  government  of  the  state  of  New  York,  p.  86. 

14  For  a discussion  of  the  extent  and  character  of  this  power  of  the  governor 
see  State  of  Illinois  v.  Illinois  Central  Railroad  Co.,  246  111.  188  (1910). 


690 


legislature.  His  term  in  most  cases  corresponds  with  that  of  the 
state  treasurer;  and  like  that  official,  this  is  sometimes  for  a shorter 
period  than  the  governor ; but  in  a few  states  the  Auditor  has  a longer 
term  than  the  Treasurer,  as  in  Illinois,  Minnesota  and  Ohio  (four 
years)  and  Pennsylvania  (three  years).  These  factors  serve  to 
emphasize  the  independence  of  the  office  from  the  chief  executive; 
but  none  of  the  states  have  placed  the  position  on  the  basis  of  judicial 
tenure,  as  are  the  auditing  officials  in  Great  Britain  and  most  of  the 
countries  of  continental  Europe.”15 

In  Illinois  the  primary  function  of  the  auditor  is  to  act  as  a check 
on  the  state  treasurer,  and  the  election  of  these  two  officials  who  deal 
with  finances,  prevents  the  organization  by  statute  of  a thoroughly 
consolidated  department  of  finance  under  the  control  of  a single  official. 

In  framing  constitutional  provisions  concerning  the  auditor,  the 
maintenance  of  his  independence  from  the  Governor  has  always  been 
considered  an  important  point.  For  this  reason  it  may  be  suggested 
that,  if  it  is  considered  necessary  to  continue  the  popular  election  of  the 
auditor,  he  should  not  be  elected  at  the  same  time  as  the  Governor. 
In  the  Oregon  plan  for  reorganization  of  the  state  government,  the 
independence  of  the  auditor  is  accomplished  by  making  the  auditor  and 
the  Governor  the  only  elective  officers  of  the  executive  department.  A 
similar  result  is  obtained  in  New  Jersey  and  Tennessee  by  having  the 
auditor  chosen  by  the  legislature.  In  most  states  the  result  of  placing 
the  control  of  disbursements  in  the  hands  of  an  official  theoretically 
independent  of  the  executive  has  been  that  in  fact  there  is  no  real  inde- 
pendent examination  of  the  accounts  and  financial  reports.  The  expe- 
rience of  European  governments  indicates  that  the  accounting  system 
and  the  detailed  control  over  disbursements  may  well  be  placed  in  a 
branch  of  the  executive  administration,  provided  there  is  a subsequent 
audit  of  the  accounts  by  an  independent  agency.  The  system  adopted 
by  the  Civil  Administrative  Code  in  Illinois,  vests  the  control  over  dis- 
bursements by  officers  appointed  by  the  Governor  in  the  department  of 
finance.  However,  there  is  at  present  an  overlapping  of  functions  of 
the  auditor  ?nd  the  department  of  finance,  which  will  be  discussed  in 
the  next  chapter.  " 

-v 

Treasurer.  The  state  treasurer  the  public  revenues 

from  the  various  collecting  authorities,  pays  the  bills  of  the  state,  upon 
presentation  of  warrants  of  the  auditor,  and  has  custody  of  the  public 
funds.  These  funds  are  deposited  in.  various  banks  selected  as  deposi- 
tories according  to  law.  His  f unions  are  largely  ministerial,  and  for 
the  most  part  controlled  by  thp  'auditor.  He  is  a member  of  four  ex- 
officio  boards,  only  two  ovwhich  deal  with  financial  matters.  The 
treasurer  is  elected  for  a shorter  term  than  any  of  the  other  state 
officials. 

Every  state  has  a state  treasurer.  He  is  the  oldest  state  financial 
official,  and  is  elected  by  popular  vote  in  most  states,  even  where  the 
other  state  officials  are  appointed.  In  Maine,  New  Hampshire,  New 

15  Fairlie,  J.  A.  A report  on  revenue  and  finance  administration.  In  the 
Report  of  the  efficiency  and  economy  committee  of  Illinois,  p.  148. 


691 


Jersey  and  Maryland,  the  treasurer  is  chosen  by  the  legislature.  In 
this  manner  he  is  made  independent  of  the  Governor.  A similar  result 
is  secured  by  election  at  a different  time  or  for  a shorter  term  than  the 
Governor,  in  Pennsylvania,  New  Jersey,  Maryland,  Indiana  and  Illi- 
nois. The  organization  of  the  financial  administration  of  the  federal 
government  combines  the  functions  of  treasurer  and  auditor  in  one 
department  and  makes  the  whole  department  responsible  to  the  presi- 
dent who  is  in  turn  responsible  to  the  people.  The  success  of  this  plan 
has  been  advanced  as  an  argument  against  the  need  of  an  independent 
treasurer  and  auditor. 

The  committee  on  retrenchment  of  the  New  York  State  recon- 
struction commission  recommended  that  the  treasurer  be  made  an 
appointive  officer  under  a proposed  commissioner  of  taxation  and 
finance.  He  would  be  the  head  of  the  bureau  of  treasury.  The  treas- 
urer is  also  an  appointive  officer  under  the  proposed  Oregon  plan  of 
state  government.16 

Superintendent  of  Public  Instruction.  The  superintendent  of 
public  instruction  has  general  supervision  over  the  common 
and  public  schools,  with  advisory  and  quasi- judicial  powers 
over  local  authorities,  and  with  some  administrative  and  finan- 
cial powers.  He  controls  the  distribution  of  the  state  school  funds. 
His  relations  to  local  authorities  are  principally  supervisory  in  nature. 

The  superintendent  of  public  instruction  exists  under  some  title 
in  every  state.  In  thirty-three  states,  the  superintendents  are  elected 
by  popular  vote,  in  seven  (Maine,  Massachusetts,  Minnesota,  Ohio, 
Pennsylvania,  New  Jersey  and  Texas)  they  are  appointed  by  the 
Governor  and  in  eight  (Connecticut,  Delaware,  Maryland,  New  Hamp- 
shire, New  York,  Rhode  Island,  Tennessee  and  Vermont)  they  are 
appointed  by  the  state  board  of  education. 

Concerning  the  election  of  the  superintendent  of  public  instruc- 
tion, the  educational  commission  of  this  state,  which  was  appointed 
in  1907,  in  its  report  made  the  following  statement:  “The  election  by 
the  people,  as  well  as  that  of  the  election  by  the  General  Assembly,  is 
open  to  the  objection  that  political  affiliations  and  political  expediency 
rather  than  merit  determine  the  selection  of  a candidate  for  the  office 
of  superintendent  of  public  instruction.  It  does  not  always  happen 
that  the  man  best  qualified  for  the  duties  of  the  position  belongs  to 
the  dominant  party.  Yet  a political  party  is  not  liable  to  select  a can- 
didate outside  its  ranks.  Again,  the  state  superintendency  is  to  the 
politicians,  perhaps,  the  least  important  of  the  state  offices.” 

“ The  appointment  of  the  school  executive  by  the  Gov- 

ernor or  by  a state  board  has  worked  well  in  those  states  in  which  this 
method  of  selecting  this  officer  has  been  practiced.  If  political  con- 
siderations have  not  always  been  left  out  of  account  they  have  in  many 
cases  been  plainly  ignored.  In  Pennsylvania,  for  instance,  in  which 
state  the  superintendent  of  public  instruction  is  appointed  by  the  Gov- 

18  Beard  and  Shultz.  Documents  on  the  initiative,  referendum  and  recall. 
VI  Appendix.  The  proposed  Oregon  system,  p.  376. 


692 


ernor,  with  the  advice  and  consent  of  two-thirds  of  all  the  members 
of  the  senate,  there  has  been  no  strictly  political  appointment  to  the 
office  of  superintendent  of  public  instruction  during  the  last  gener- 
ation.”17 

A report  to  the  effieciency  and  economy  committee  said  that  there 
was  need  for  an  increase  of  the  powers  of  the  state  superintendent  of 
public  instruction  and  a strengthening  of  the  powers  which  he  already 
possessed.  It  analyzed  his  present  powers  as  “largely  advisory  and 
clerical  in  character.”  This  commission  favored  the  appointment  of 
the  superintendent  of  public  instruction  by  the  Governor.18 

A recent  bulletin  of  the  United  States  bureau  of  education  out- 
lines the  following  objections  to  selecting  the  state  superintendent  of 
public  instruction  by  popular  vote. 

“1.  This  method  of  selection  limits  the  field  from  which  to  choose, 
as  the  superintendent  must  be  a citizen  of  the  given  state.  In  states 
where  the  superintendent  is  appointed  by  the  state  board  of  education 
or  by  the  Governor,  this  official  may  be  selected  from  the  country  at 
large.  Such  freedom  of  selection  is  clearly  in  the  interest  of  better 
service. 

2.  Where  the  state  superintendent  is  selected  by  popular  vote  the 
salary  is  fixed  by  law.  The  salary  cannot  be  adjusted  to  fit  the  person 
desired ; but  a person  must  be  found  to  fit  the  salary. 

3.  Where  the  state  superintendent  is  elected  by  popular  vote  the 
term  of  office  is  short,  two  to  four  years,  and  reelection  is  uncertain. 
This  lack  of  continuity  in  the  service  is  a serious  handicap  to  the 
superintendent,  however  capable. 

4.  This  method  of  appointment  makes  the  office  political  and  sub- 
jects it  to  all  the  fluctuations  of  party  and  factional  politics.”19 

In  favor  of  the  election  of  the  superintendent  it  may  be  urged  that 
the  office  should  be  directly  responsible  to  the  people  because  a large 
proportion  of  the  appropriations  for  each  biennium  are  for  educational 
purposes,  and  also  because  of  the  fact  that  his  functions  so  far  as  they 
have  to  do  with  the  common  schools  do  not  relate  closely  to  that  of 
other  officers  of  the  state.  Furthermore,  it  may  be  suggested  that 
it  is  doubtful  whether  appointment  by  the  Governor  will  be  any  more 
successful  in  removing  the  office  from  politics  than  by  election  at  a 
dififerent  time  than  other  state  officers.  Concerning  lack  of  continuity 
of  service  it  may  be  noted  that  the  present  incumbent  of  the  office 
was  first  elected  in  1906,  and  that  his  predecessor  served  two  consecu- 
tive terms.  There  is  also  another  case  in  earlier  times  where  Newton 
Bateman  served  ten  consecutive  years  as  superintendent,  1865-1875,  in 
addition  to  an  earlier  period  of  service  from  1859  to  1863. 

17  Report  of  the  educational  commission.  In  the  Twenty-eighth  biennial 
report  of  the  superintendent  of  public  instruction  of  the  state  of  Illinois. 
July  1,  1 908-June  30,  1910,  p.  267-268. 

18  Mathews,  J.  M.  A report  on  educational  administration.  In  the  report 
of  the  efficiency  and  economy  committee  of  Illinois,  p.  412-413. 

19  U.  S.  Bureau  of  education.  A manual  of  educational  legislation  for  the 
guidance  of  committees  on  education  in  the  state  legislatures,  1919,  p.  11. 


G93 


Attorney  General.  It  is  the  duty  of  the  attorney  to  act  as  at- 
torney for  the  state  and  state  officers  before  the  courts,  and  to  act  as 
legal  adviser  to  the  Governor,  other  state  officers  and  the  General  As- 
sembly. His  duties  are  prescribed  by  statute  and  in  practice  involve  the 
exercise  of  considerable  discretionary  power.  He  is  the  chief  legal 
officer  of  the  state,  but  he  has  been  given  supervision  of  the  inheritance 
tax  administration  which  is  primarily  a financial  rather  than  a legal 
matter.  He  is  also  ex-cfficio  a member  of  the  state  canvassing  board. 

The  office  of  the  attorney  general  is  of  particular  importance  in 
this  state  because  of  the  Supreme  Court  decision  in  Fergus  v.  Russel, 
270" 111.,  304  (1915),  holding  that  the  common  law  powers  which  the 
attorney  general  possesses  under  the  constitution  are  inherent  in  the 
office,  and  cannot  be  taken  away  by  the  General  Assembly.  Moreover, 
since  the  attorney  general  is  the  chief  law  officer  of  the  state,  appro- 
priations to  other  officers  and  boards  for  legal  services  and  attorney’s 
fees  are  invalid.  Under  this  decision,  all  legal  advice  and  services  in 
the  enforcement  of  the  laws  must  be  performed  by  the  attorney  gen- 
eral. All  departments  of  state  government  are  also  dependent  upon 
him  for  advice  and  interpretation  of  the  statutes  which  they  are 
directed  by  law  to  administer. 

This  advisory  power,  coupled  with  that  of  attorney  for  the  state, 
makes  the  attorney  general  an  important  factor  in  the  formation  and 
execution  of  administrative  policies.  He  is  brought  into  close  connec- 
tion with  every  branch  of  state  government,  and  to  a large  extent 
affects  the  administration  of  laws  by  all  state  officials. 

The  attorney  general  is  chosen  by  popular  vote  in  every  state 
except  Maine,  New  Hampshire,  New  Jersey,  Pennsylvania,  Tennes- 
see, Vermont  and  Wyoming.  In  these  states  he  is  chosen  either  by 
the  Governor  alone,  or  by  the  Governor  with  the  consent  of  the  senate, 
or  by  joint  ballot  of  the  two  branches  of  the  legislature.  In  most  states 
his  powers  as  public  prosecutor  are  seriously  curtailed  by  the  powers 
granted  to  the  state’s  attorneys  in  their  respective  districts. 

The  attorney  general  of  the  United  States  is  a member  of  the 
cabinet,  appointed  by  the  president,  and  removable  by  him  at  will.  It 
has  been  suggested  that  a similar  system  in  state  government  would 
be  preferable  to  the  present  system  of  popular  election.  In  Pennsyl- 
vania and  New  Jersey,  two  of  our  most  populous  states,  the  attorney 
general  is  appointed  by  the  governor. 

This  question  was  discussed  in  the  New  York  consitutional  con- 
vention of  1915.  President  Taft  spoke  before  the  convention  commit- 
tee in  favor  of  the  appointment  of  the  attorney  general  as  follows: 
“When  you  consult  a lawyer,  you  dont  consult  a judge.  You  consult 
a man  who  is  with  you,  seeking  to  help  you  carry  out  the  lawful  pur- 
poses that  you  have.  Therefore  he  ought  to  be  your  appointee.  You 
select  him.  Now  the  chief  executive  is  given  an  attorney  general  to 
advise  and  represent  him  in  all  legal  matters.  I don’t  see  why  he 
shouldn’t  be  appointed.  It  would  be  most  akward  if  he  was  not,  in 
Washington,  I can  tell  you  that.”  20 


20  New  York  constitutional  convention  documents,  No.  11,  1915,  p.  8. 


694 


In  a document  published  by  the  New  York  state  constitutional 
convention  commission,  the  following  statement  was  made : “What 

is  of  special  interest  is  this:  that  a thousand  opinions  are  asked  from 
the  law  officer  to  one  asked  for  from  the  courts;  that  under  our  sys- 
tem the  law  officer  makes  the  law  governing  the  administration  of 
affairs ; that  making  him  politically  independent  gives  to  the  executive 
another  way  of  dodging  political  responsibility ; that  it  is  a conception 
of  organization  that  finds  its  justification  as  .a  ‘check’  in  a government 
which  has  no  politically  responsible  head.”  21 

Governor  Goodrich  of  Indiana  in  his  message  to  the  General  As- 
sembly at  the  opening  of  the  71st  biennial  session,  1919,  said:  “The 

Attorney  General  is  necessarily  the  legal  arm  of  the  executive ; upon 
him  must  the  governor  depend  for  carrying  forward  many  of  the  acts 
of  his  administration,  and  the  appointment  should  be  made  by  the 
Governor. 

“I  recommend  that  the  office  of  attorney  general  as  an  elective 
office  be  abolished  and  that  the  Governor  be  authorized  to  appoint  the 
attorney  general  on  and  after  the  expiration  of  the  term  of  the  present 
incumbent,  Mr.  Stansbury. 

“The  cry  has  been  raised  in  some  quarters  that  in  attempting  to 
simplify  and  render  efficient  the  machinery  of  government  of  Indiana, 
we  are  tending  toward  a ‘dangerous  centralization  of  power.’  While 
I believe  that  most  of  the  criticism  is  honest,  I feel  sure  that  it 
arises  from  a hasty  and  immature  consideration  of  the  subject.  I 
do  not  believe  that  we  will  be  treading  on  dangerous  ground  if  we 
give  to  the  next  chief  executive  of  Indiana,  whoever  he  may  be,  the 
right  to  choose  his  own  legal  adviser,  a right  enjoyed  by  every  citizen 
of  our  land,  a right  accorded  the  mayor  of  every  city  in  our  state  and 
by  every  other  executive  officer  from  the  President  of  the  United 
states  down  to  the  most  unassuming  county  commissioner.”  22 

It  has  been  argued  against  appointment  by  the  Governor  that  the 
attorney  general  should  be  independent  because  of  his  function  as 
prosecutor  of  public  officials.  If  his  appointment  and  removal  were 
controlled  by  the  Governor,  it  has  been  suggested  that  he  might  be 
reluctant  to  prosecute  other  officials  appointed  by  the  Governor.  It 
may  be  noted  that  the  attorney  general  was  retained  as  an  elective 
officer  under  the  proposed  reorganization  of  the  executive  department 
of  the  New  York  state  constitution  submitted  in  1915. 

In  the  constitutional  convention  recently  held  in  Massachusetts,  a 
proposal  to  inaugurate  a thoroughgoing  system  of  law  enforcement 
by  giving  the  attorney  general  the  power  to  appoint  district  attorneys 
was  discussed.  The  duties  of  district  attorneys  in  Massachusetts  cor- 
respond to  the  duties  of  state’s  attorneys  in  Illinois.  In  this  connec- 
tion, Mr.  Chas.  P.  Howard,  of  Reading,  presented  a resolution,  provid- 
ing that  the  attorney  general  should  be  appointed  by  the  Governor, 
and  should  be  removable  by  him,  that  he  should  be  the  head  of  the 
Law  Department  of  the  Commonwealth,  and  should  be  empowered  to 

21  New  York  state  constitutional  convention  commission.  The  constitution 
and  government  of  the  state  of  New  York.  An  appraisal,  p.  115-117. 

22  Message  of  Governor  James  P.  Goodrich  delivered  at  the  opening  of  the 
71st  biennial  session  of  the  Indiana  General  Assembly,  1919,  p.  11. 


695 


appoint  district  attorneys  for  indeterminate  terms  and  assign  them  to 
such  districts  as  he  might  deem  advisable,  subject  to  his  direction  and 
removable  by  him. 

Mr.  Pillsbury  in  discussing  this  resolution  said : “It  is  speaking 

within  bounds  to  say  that  the  Attorney  General,  by  and  large,  is  quite 
as  powerful  or  influential  a functionary  as  the  Governor,  and  the  dis- 
trict attorney,  a vastly  more  important  character  than  any  single  judge 
of  any  court.”  23 


23  Massachusetts.  Debates  in  the  constitutional  convention,  v.  1,  p.  1031-1039. 


690 


VII.  LACK  OF  COORDINATION  AND  OVERLAPPING  OF 

FUNCTIONS. 


In  this  chapter  attention  is  called  to  several  of  the  more  important 
cases  in  which  there  is  lack  of  co-ordination;  largely  because  with  re- 
spect to  the  same  matter,  powers  have  by  statute  been  conferred  upon 
statutory  officers  and  also  upon  executive  officers  created  by  the  con- 
stitution. The  matter  here  dealt  with  becomes  of  importance  to  the 
constitutional  convention,  because  a better  coordination  of  functions 
may  require  not  merely  a change  in  statutory  powers  but  also  a change 
in  the  status  of  constitutional  officers  now  exercising  such  statutory 
powers.  The  discussion  of  overlapping  functions  does  not  seek  to  be 
complete,  and  does  not  cover  at  all  instances  of  overlapping  which  re- 
late to  purely  statutory  officers,  such  as  those  with  respect  to  public 
health  administration,  and  with  respect  to  agriculture  (the  latter  due 
in  large  part  to  the  peculiar  status  of  the  Farmers’  Institute). 


Finance  Administration.  State  finance  administration  is  dis- 
tributed between  a number  of  elective  officers  and  appointive  boards 
without  concentrated  responsibility.  Various  state  departments  have 
duties  of  some  importance  in  this  field,  including  the  Governor,  the 
auditor  of  public  accounts,  the  treasurer,  the  tax  commission,  the 
finance  department,  the  secretary  of  state  (as  receiver  of  corporation 
fees  and  automobile  licenses),  the  attorney  general  (in  supervising  the 
inheritance  tax),  the  department  of  trade  and  commerce  (as  receiver 
of  insurance  fees  and  taxes),  the  tax  levy  board,  the  court  of  claims, 
and  the  state  depository  board.  Some  auditing  powers  are  vested  in 
the  civil  service  commission  through  its  control  of  state  employes,  and 
in  the  department  of  public  works  and  buildings,  through  its  power 
over  state  contracts,  and  supervision  of  purchasing. 

The  procedure  necessary  in  the  payment  of  salaries  of  state  em- 
ployes under  the  Civil  Administrative  Code  will  illustrate  the  working 
of  some  of  the  components  of  this  financial  system.  A monthly  payroll 
is  sent  by  the  department  issuing  it  to  the  civil  service  commission  for 
its  certification  that  none  of  the  employes  are  employed  in  violation  of 
the  provisions  of  the  civil  service  act.  It  is  then  sent  to  the  depart- 
ment of  finance,  where  it  must  be  audited  and  approved.  The  depart- 
ment of  finance  sends  it  to  the  auditor,  who  again  ascertains  that  the 
payments  therein  specified  are  authorized  by  the  appropriation  act,  a 
repetition  of  the  work  of  the  department  of  finance.  The  auditor  then 
issues  warrants  on  the  treasurer  for  the  payment  of  the  employes. 
In  case  a contract,  or  purchase  of  supplies,  is  involved,  instead  of 
personal  services,  the  voucher  issued  by  the  department  incurring  the 


697 


liability  must  also  be  approved  by  the  department  of  public  works  and 
buildings.  Every  payment  of  money  from  the  state  treasury  by  a de- 
partment under  the  Civil  Administrative  Code  involves  this  cumber- 
some financial  procedure. 

The  constitution  seems  to  designate  the  auditor  as  the  chief  finan- 
cial officer  of  the  state,  but  in  fact  he  exercises  no  further  power  than 
to  see  that  no  money  is  paid  out  of  the  state  treasury  without  authority 
of  law.  Statutes  have  directly  conferred  powers  of  financial  control 
on  other  state  officials.  The  Governor  for  instance,  under  the  charter 
granted  the  Illinois  Central  Railroad,  is  given  the  power  to  pass  upon 
the  correctness  of  the  accounts  of  the  railroad  in  order-to  determine 
the  amount  of  the  7%  gross  receipts  tax  due  to  the  state.1 

Most  of  the  statutes  creating  the  departments  outside  of  the  Civil 
Administrative  Code  provide  that  vouchers  for  expenditures  must  be 
approved  by  the  Governor,  and  the  approval  of  these  vouchers  has 
been  delegated  by  the  Governor  to  an  administrative  auditor  in  the 
department  of  finance. 

The  function  of  the  department  of  finance  is  to  provide  a central- 
ized control  of  the  expenditures  of  all  departments  subject  to  the  Gov- 
ernor and  to  prepare  a state  budget.  The  court  of  claims  is  given  the 
power  to  adjudicate  claims  against  the  state,  but  their  adjudication  is 
in  effect  merely  a recommendation  to  the  General  Assembly,  which 
must  make  the  necessary  appropriations  before  claims  are  paid.  The 
treasurer  must  open  the  bids  for  the  deposit  of  state  moneys  in  the 
presence  of  the  auditor  and  the  director  of  finance,  but  the  power  to 
pass  on  such  bids  is  in  the  treasurer  alone. 

The  administration  of  the  revenues  of  the  state  (as  distinguished 
from  its  expenditures),  is  vested  in  the  following  departments  and  offi- 
cials : the  tax  commission,  the  tax  levy  board,  the  department  of  trade 
and  commerce  (insurance  fees),  the  attorney  general  (inheritance 
tax),  the  secretary  of  state  (corporation  and  automobile  fees).  The 
last  two  officers  mentioned  are  not  responsible  to  the  Governor,  and  his 
supervision  over  revenue  collection  is  incomplete. 

The  reorganization  plan  of  the  New  York  State  Reconstruction 
Commission  makes  an  effort  to  keep  the  auditing  functions  separate 
from  other  financial  agencies.  It  proposes  the  organization  of  a de- 
partment of  audit  and  control,  whose  head  is  to  be  a comptroller  elected 
for  the  same  term  as  the  Governor,  and  a department  of  taxation  and 
finance  under  the  proposed  organization.  The  latter  department  is  to 
be  divided  into  five  bureaus : 

Bureau  of  taxation  and  revenue ; 

Bureau  of  the  treasury  (whose  head  should  be  an  appointed  state 
treasurer)  ; 

Bureau  of  motor  vehicles ; 

Bureau  of  purchasing; 

Bureau  of  administration.2 


1 For  a discussion  of  the  extent  of  this  power,  see  State  v.  I.  C.  Railroad 
Co.,  246  111.  188  (1910). 

2 New  York  state  reconstruction  commission.  Draft  of  summary  of  report 
on  retrenchment  and  reorganization  in  the  state  government,  1919,  pp.  15-17, 


698 


Educational  agencies.  The  public  elementary  and  secondary 
schools  of  Illinois  are  primarily  directed  by  local  authorities,  under  the 
provisions  of  state  laws,  with  a limited  supervision  by  the  state  super- 
intendent of  public  instruction.  The  normal  schools  and  the  Uni- 
versity of  Illinois  are  under  state  control.  The  government  and  man- 
agement of  the  normal  schools  is  vested  in  a normal  school  board  in  the 
department  of  registration  and  education.  This  board  consists  of 
nine  officers  appointed  by  the  Governor,  together  with  the  director  of 
registration  and  education,  who  is  ex-officio  chairman,  and  the  superin- 
tendent of  public  instruction,  who  is  ex-officio  secretary  of  the  board. 
This  board  acts  independently  of  the  department  of  registration  and 
education  and  the  superintendent  of  public  instruction  has  no  control 
over  it.  The  director  of  the  department  of  registration  and  education, 
the  chairman  of  this  board,  is  the  chief  executive  of  a department  of 
which  this  board  is  a part,  and  the  heterogeneous  activities  of  this  de- 
partment include  the  licensing  of  some  twelve  different  professions, 
trades  and  occupations,  and  the  management  of  the  state  museum,  and 
various  scientific  surveys.  We  have  the  anomalous  situation  of  the 
normal  schools  being  managed  by  a board  directly  responsible  to  the 
Governor,  and  in  actual  operation,  quite  independent  of  the  superin- 
tendent of  public  instruction,  the  nominal  head  of  the  school  system 
of  the  state. 

The  University  of  Illinois  is  under  the  control  of  a board  of 
trustees  consisting  of  the  Governor,  the  director  of  the  department  of 
agriculture,  the  superintendent  of  public  instruction  and  nine  trustees, 
three  elected  every  two  years  to  serve  for  a six  year  term.  The  trustees 
are  voted  for  on  the  same  ballots  with  the  state  officers  at  the  general 
election,  that  is,  their  election  is  partisan.  Their  nomination,  however, 
is  not  by  primary  but  by  convention. 

“The  popular  election  of  trustees  tends  to  lengthen  the  state  ballot 
where  it  should  be  shortened,  and  contains  a possibility,  at  least,  of 
injecting  political  considerations  where  they  should  not  be  allowed  to 
enter. 

“A  change  in  the  method  of  electing  the  members  of  the  board 
of  trustees  for  the  State  University  should  be  considered.  Even  if  con- 
tinued as  a body  chosen  by  popular  election,  the  time  and  manner  of 
election  should  be  changed.  In  Michigan  the  regents  of  the  State  Uni- 
versity and  the  trustees  of  the  State  Agricultural  College  are  elected 
at  the  biennial  April  election  for  judges  of  the  Supreme  Court.  The 
trustees  of  the  University  of  Illinois  might  be  elected  at  the  time  of  the 
township  and  city  elections  in  April ; and  provision  made  for  non- 
partisan nominations  for  those  positions. 

“In  most  of  the  states  the  board  of  trustees  or  managing  board  for 
the  state  university  is  appointed  by  the  Governor,  usually  with  the 
consent  of  the  Senate ; and  the  adoption  of  this  method  should  also  be 
taken  into  consideration.”3 


3 Mathews,  J.  M'.,  A Report  on  educational  administration.  In  the  Report  of 
the  Efficiency  and  Economy  Committee  ,of  Illinois,  pp.  427-428. 


699 


In  the  department  of  registration  and  education  there  are  also 
the  following  scientific  surveys ; the  natural  history  survey,  the  water 
survey,  the  geological  survey,  and  the  entomological  survey,  and  the 
board  of  natural  resources  and  conservation  advisers.  This  department 
also  has  control  of  the  state  museum.  The  board  of  trustees  of  the 
State  University  has  established  an  agricultural  experiment  station  and 
an  engineering  experiment  station.  These  experiment  stations  are  sup- 
ported out  of  the  regular  university  funds,  and  the  agricultural  experi- 
ment station  receives  some  funds  from  the  United  States.  A coopera- 
tive investigation  of  coal  mining  problems  has  been  established  by 
agreement  between  the  geological  survey  division,  the  University  de- 
partment of  mining  engineering,  and  the  United  States  Bureau  of 
Mines.  Concerning  organization  of  these  surveys  before  the  enactment 
of  the  Civil  Administrative  Code,  the  report  of  the  efficiency  and  efion- 
omp  committee  contains  this  statement: 

“There  seems  to  be  room  for  improvement  in  the  administrative 
organization  of  the  state’s  scientific  services,  by  placing  them  under  the 
same  general  supervision.  This  may  be  done  either  by  placing  them 
under  the  university  board  of  trustees,  as  is, now  the  case  with  the 
water  survey  and  the  natural  history  laboratory,  or  by  establishing  a 
commission  on  natural  resources  in  place  of  and  similar  to  the  present 
State  Geololgical  Commission.”4 

No  question  of  reorganization  presents  more  difficulties  than  that 
of  the  libraries.  The  state  of  Illinois  maintains  the  following  libraries 
in  Springfield ; the  state  library,  the  library  extension  commission  li- 
brary, the  law  library,  state  museum  library,  and  the  legislative 
reference  bureau  library.  Outside  of  Springfield  there  are  libraries 
maintained  in  connection  with  the  university,  state  normal  schools,  vari- 
ous charitable  and  penal  institutions,  the  appellate  courts.  The  office 
of  the  superintendent  of  public  instruction,  and  the  office  of  the  public 
utilities  commission  and  other  departments  and  commissions  in 
Springfield  also  maintain  small  libraries.  In  any  reorganization  or 
consolidation  of  these  libraries  the  state  law  library,  because  of  its 
close  relation  to  the  Supreme  Court,  is  likely  to  remain  an  independent 
agency.  The  primary  function  of  the  legislative  reference  bureau  is 
that  of  bill  drafting  and  furnishing  information  to  members  of  the 
General  Assembly,  and  the  maintenance  of  a library  is  merely  inci- 
dental to  these  functions.  The  historical  library  has  a distinct  function 
with  reference  to  its  research  and  publication  work.  However,  it  is 
undoubtedly  true  that  there  is  duplication  in  the  work  of  these  libraries 
and  a general  lack  of  coordination  of  their  activities. 

The  Governor  is  charman  of  the  legislative  reference  bureau,  and 
the  state  museum  library  being  under  the  code,  he  has  direct  control 
of  it.  The  Governor  is  ex-officio  a member  of  the  board  of  commis- 
sioners which  nominally  controls  the  state  library  and  the  library  exten- 
sion commission.  The  secretary  of  state,  however,  being  ex-officio 
state  librarian  and  chairman  of  the  library  extension  commission  is 
the  actual  force  in  the  management  of  these  libraries.  The  superin- 


4 Ibid.,  p.  477. 


700 


tendent  of  public  instruction,  to  whose  work  the  library  management  is 
most  germane,  like  the  Governor,  is  ex-officio  a member  of  the  board 
of  commissioners  of  the  state  library. 

From  this  outline  it  may  be  seen  that  there  are  important  questions 
in  library  administration  to  be  solved  in  this  state,  and  many  difficulties 
in  the  way  of  their  solution.  In  this  connection  the  plan  of  organiza- 
tion of  the  state  libraries  in  New  York  and  Indiana  as  a branch  of  their 
educational  system  is  interesting.  The  law  library,  however,  in  New 
York,  and  the  legislative  reference  bureau  in  Indiana  are  under  separ- 
ate management.  Ohio,  Texas  and  California  have  appointive  library 
boards,  and  the  state  libraries  under  their  jurisdiction  include  all  or  at 
least  the  most  important  library  services.  In  many  of  the  states  there 
are  separate  authorities  for  different  phases  of  library  work  as  in  Illi- 
nois.5 

The  vocational  education  board  is  a separate  board  of  which  the 
superintendent  of  public  instruction,  and  the  director  of  the  depart- 
ment of  registration  and  education,  are  ex-officio  members.  This 
completes  the  enumeration  of  the  agencies  whose  work  is  educational 
in  character. 

The  main  problem  for  the  consideration  of  a constitutional  con- 
vention concerning  these  agencies  is  in  connection  with  the  framing 
of  provisions  concerning  the  office  of  superintendent  of  public  instruc- 
tion. The  report  of  the  educational  commission  (1907)  and  the  report 
of  the  Efficiency  and  Economy  Committee  (1915),  both  recommended 
the  creation  of  a state  board  of  education  and  the  strengthening  of  the 
power  of  the  superintendent  of  public  instruction.  We  have  discussed 
the  suggestion  of  making  him  an  appointive  officer  in  the  preceding 
chapter. 

The  United  States  Bureau  of  Education,  in  a recent  bulletin,  con- 
tains the  following  discussion  concerning  state  educational  organiza- 
tion : 

“Modern  educational  development  is  toward  the  state  board  of 
education  as  the  administrative  head  of  the  state’s  educational  system. 
Thirty-seven  states  leave  the  entire  direction  of  the  public  school  sys- 
tem to  such  boards.  Several  states  have  no  such  state  boards;  in  sev- 
eral others,  boards  have  been  organized  since  the  passage  of  the  Smith- 
Hughes  act  to  administer  the  funds  provided  under  this  act ; and  in 
others  again  the  state  boards  of  education  administer  only  the  higher 
educational  institutions,  as  the  university,  agricultural  college  and 
normal  schools. 

“Of  the  thirty-seven  states  with  state  boards  of  education,  eight 
have  ex-officio  boards,  which  usually  comprise  the  Governor,  the  super- 
intendent of  public  instruction  and  one  or  more  other  state  officials  such 
as  secretary  of  state,  attorney  general,  treasurer,  auditor,  etc.  Of  the 
28  states,  with  appointed  state  boards,  22  leave  the  appointment  to  the 
Governor  subject,  in  most  cases,  to  approval  of  the  state  Senate;  four 
states  leave  the  selection  of  the  boards  to  the  state  legislature ; one  state 

5 Mathews,  J.  M.  A report  on  educational  administration.  In  the  Report 
of  the  Efficiency  and  Economy  Committee  of  Illinois.  Pp.  456-464  contain  a dis- 
cussion of  state  library  administration. 


701 


puts  it  to  popular  vote ; and  in  one  state  it  is  left  to  the  state  superin- 
tendent of  public  instruction.”  6 

The  Efficiency  and  Economy  Committee  recommended  the  creation 
of  a department  of  education  to  include  the  work  of  the  superintendent 
of  public  instruction,  the  normal  school  boards,  the  university  trustees, 
the  state  library,  a natural  resources  commission  and  other  state  agen- 
cies. The  superintendent  of  public  instruction  was  to  be  the  executive 
head  of  the  proposed  organization.  The  educational  agencies  which 
have  been  consolidated  in  the  department  of  registration  and  educa- 
tion, if  divorced  from  the  registration  functions  which  are  but  vaguely 
related  to  education,  form  a good  basis  upon  which  to  organize  such  a 
department,  in  combination  with  that  of  the  superintendent  of  public 
instruction. 


Corporations.  The  department  of  trade  and  commerce  has 
jurisdiction  over  insurance  companies,  and  through  its  nominal  super- 
vision of  the  public  utilities  commission,  it  has  some  jurisdiction  over 
public  utility  corporations.  The  secretary  of  state  issues  charters  of 
incorporation  to  most  classes  of  corporations,  and  exercises  some  super- 
vision over  a great  number  of  ordinary  business  corporations.  He  is 
also  charged  with  the  administration  of  the  “blue  sky  law.”  The  auditor 
of  public  accounts  issues  charters  to  state  banks,  has  supervision  of  the 
state  banks  and  banking  institutions,  trust  companies,  title  guarantee 
companies,  building  and  loan  associations  and  pawners’  societies  . A 
banking  law  which  is  to  be  submitted  to  the  people  in  November,  1920, 
enlarges  his  supervision  over  banks.  Thus,  the  administration  of  the 
laws  concerning  corporations  is  divided  between  two  elective  state  offi- 
cials and  the  department  of  trade  and  commerce. 

The  tax  commission,  which  is  nominally  a part  of  the  department 
of  finance,  is  charged  with  the  assessment  of  the  capital  stock  of  all  cor- 
porations except  those  for  manufacturing,  mercantile,  mining,  printing 
and  publishing  newspapers,  breeding  of  stock  and  banking  purposes. 
The  latter  corporations  are  assessed  locally.  Some  classes 
of  corporations  are  under  the  supervision  of  .more  than  one 
state  authority.  Public  utility  corporations,  trust  companies, 
title  guarantee  companies,  and  assessment  life  and  accident  in- 
surance companies  are  all  chartered  by  the  secretary  of  state, 
but  are  under  the  supervision  of  the  public  utilities  commission, 
the  auditor,  or  the  department  of  trade  and  commerce.  With  the 
present  system  of  independent  offices  there  is  no  uniformity  of  method 
with  respect  to  the  supervision  and  incorporation  of  business  corpora- 
tions. Supervision  over  important  classes  of  business  corporations  has 
been  vested  in  some  of  the  elective  state  officers,  whose  primary  func- 
tions have  no  relation  to  this  work,  and  the  enforcement  of  these  laws 
is  thus  distinctively  removed  from  the  control  of  the  Governor. 

The  Efficiency  and  Economy  Committee  recommended  the  organi- 
zation of  all  the  agencies  charged  with  supervision  of  corporations  into 

6 U.  S.  Bureau  of  Education.  A manual  of  educational  legislation  for  the 
guidance  of  committees  on  education  in  the  state  legislatures,  1919,  p.  8. 


702 


a single  department  known  as  the  department  of  trade  and  com- 
merce.7 

Such  a department  was  organized  under  the  code  and  it  has  super- 
vision of  insurance  companies  and  nominal  supervision  of  public  utility 
corporations. 

In  many  of  the  states  the  supervision  of  business  corporations  is 
divided  between  a number  of  separate  officials,  without  correlation  or 
organization,  as  in  Illinois.  In  some  states  the  control  of  banking  and 
insurance  companies  is  vested  in  the  same  official.  Under  the  reorgani- 
zation enacted  into  law  in  Massachusetts  in  1919,  this  combination  was 
made.  Virginia  and  North  Caroline  consolidate  all  offices  and  boards 
having  jurisdiction  over  the  organization  and  activities  of  business  cor- 
porations into  a single  state  corporation  commission.  These  commis- 
sions also  act  as  a state  board  of  assessors  for  the  assessment  and  taxa- 
tion of  certain  classes  of  corporations. 


Elections.  The  secretary  of  state,  the  voting  machine  commis- 
sioners, the  state  canvassing  board,  and  the  primary  canvassing  board, 
each  have  functions  dealing  with  elections.  The  last  two  are  ex-officio 
boards,  but  the  membership  of  these  boards  is  not  identical.  The  secre- 
tary of  state  is  ex-officio  a voting  machine  commissioner.  These  several 
state  election  authorities  introduce  confusion  and  uncertainty  into  the 
election  machinery  of  the  state,  which  might  well  be  simplified  through 
consolidation.  The  Efficiency  and  Economy  Committee  recommended 
the  creation  of  a state  board  of  elections  to  consist  of  the  Governor, 
secretary  of  state,  and  attorney  general,  to  exercise  the  functions  of 
these  various  agencies.8 

Under  a plan  of  reorganization  of  the  government  of  New  York 
state  drafted  by  the  reconstruction  commission,  a bureau  of  elections, 
is  created  in  the  department  of  state,  of  which  department  the  secre- 
tary of  state  is  the  chief.  The  duties  of  the  state  board  of  canvassers, 
state  board  of  examiners  of  voting  machines,  and  the  state  superin- 
tendents of  elections  would  be  transferred  to  the  proposed  bureau  of 
elections.9 

Such  a plan  might  be  adopted  in  Illinois,  thereby  simplifying  the 
election  machinery  and  strengthening  the  office  of  the  secretary  of  state. 

7 Robinson,  Maurice  H.  A report  on  supervision  of  corporations  and  related 
business.  In  the  Report  of  the  Efficiency  and  Economy  Committee  of  Illinois, 
p.  697-752. 

8 Illinois.  Efficiency  and  Economy  Committee.  Report  1915,  p.  71. 

9 New  York  state  reconstruction  commission.  Draft  of  summary  of  report 
on  retrenchment  and  reorganization  in  the  state  government,  1919,  p.  19. 


703 


VIII.  CONCLUSIONS. 


Problem  of  executive  reorganization.  There  is  an  overlapping 
of  functions  and  a lack  of  correlation  in  the  duties  of  the  constitutional 
and  statutory  state  officers.  This  is  mainly  an  overlapping  of  the 
statutory  duties  of  constitutional  officers  with  the  duties  of  statutory 
officers,  and  the  problem  before  the  convention  will  be  primarily  to 
determine  whether  changes  should  be  made  as  to  present  constitutional 
officers  so  as  to  permit  a more-  ready  coordination  of  functions.  The 
constitutional  duties  of  constitutional  officers  are  relatively  unimport- 
ant. This  bulletin  has  dealt  largely  with  the  statutory  organization,  for 
its  consideration  is  necessary  in  order  to  present  the  real  problems 
at  issue  in  the  framing  of  an  executive  article  in  the  constitution,  and 
not  with  any  notion  that  the  convention  will  think  it  desirable  to  em- 
body in  the  constitution  the  details  of  present  statutes. 

Reorganization  in  other  states.  This  overlapping  of  functions 
has  been  a source  of  weakness  in  American  state  government  generally 
and  has  lead  to  reorganization  and  consolidation  in  many  states.  The 
Civil  Administrative  Code  enacted  in  this  state  in  1917  is  the  most 
comprehensive  plan  of  administrative  consolidation  that  has  been 
adopted  in  any  state.  There  are,  however,  many  departments  of  state 
government  not  included  in  the  organization.  Many  of  these  depart- 
ments may  be  correlated  through  statutory  enactment,  but  the  adoption 
of  a centralized  plan  of  state  government  would  also  involve  constitu- 
tional changes.  Statutory  plans  similar  to  the  Civil  Administrative 
Code  have  been  adopted  in  Idaho  and  Nebraska. 

The  recent  constitutional  conventions  in  New  York  and  Massa- 
chusetts spent  considerable  time  on  the  problem  of  reorganization.  In 
New  York  a plan  was  adopted  providing  for  the  creation  of  seventeen 
departments  to  perform  the  administrative  functions  of  more  than  160 
existing  offices,  boards  and  agencies.  The  heads  of  most  of  these  de- 
partments were  to  be  appointed  by  the  governor  and  were  removable 
by  him.  The  number  of  elective  constitutional  state  officers  was  re- 
duced from  seven  to  four,  leaving  only  the  governor,  lieutenant-gov- 
ernor, comptroller  and  attorney  general  elective.  After  the  adoption 
of  this  plan  all  new  administrative  functions  were  to  be  assigned  to  one 
of  the  existing  departments,  and  no  new  department  were  to  be  created 
by  the  legislature.  (In  this  connection  it  may  be  noted  that  the  con- 
stitutions of  Nebraska  and  Arkansas  contain  limitations  on  the  power 
of  the  legislature  to  create  new  boards  and  offices.)  The  proposed 
constitution  of  New  York  containing  this  plan  of  administrative  reor- 
ganization was  submitted  to  the  people  in  November,  1915,  and  was 
defeated. 


704 


TheMassachusetts  Constitutional  Convention  adopted  an  amend- 
ment concerning  reorganization  which  was  ratified  by  the  people  on 
November  5,  1918.  This  amendment  reads:  “On  or  before  January 
1,  1921,  the  executive  administrative  work  of  the  Commonwealth  shall 
be  organized  in  not  more  than  twenty  departments,  in  one  of  which 
every  executive  and  administrative  office,  board  and  commission,  ex- 
cept those  officers  serving  directly  under  the  Governor  or  Council,  shall 
be  placed.  Such  departments  shall  be  under  such  supervision  and  regu- 
lation as  the  General  Court  may  from  time  to  time  prescribe  by  law.” 

Accordingly,  the  General  Court  in  1919  enacted  an  administrative 
consolidation  act,  establishing  twenty  departments,  excluding  the 
Governor’s  office — the  maximum  number  permitted  under  the  consti- 
tutional amendment.  The  heads  of  four  departments  are  the  constitu- 
tional elective  state  officers  and  the  other  heads  of  departments  are 
appointed  by  the  Governor,  with  the  approval  of  the  Council,  an  inde- 
pendent body  of  nine  members.  The  general  scheme  of  organization 
is  quite  complicated  and  involved.  Practically  all  the  officials  con- 
nected with  the  existing  administrative  agencies  have  been  retained, 
their  offices  being  continued  in  existence  and  placed  under  the  several 
department  without  alteration  either  in  personnel  or  duties.  Seven 
boards  which  apparently  did  not  fit  into  the  scheme  elsewhere  are 
placed  under  the  Governor  and  council. 

The  New  York  plan  and  the  Massachusetts  plan  present  alterna- 
tive plans  which  might  be  adopted  by  the  constitutional  convention. 
The  New  York  plan  is  an  example  of  an  incorporation  of  statutes  into 
the  constitution.  In  the  light  of  the  development  of  the  executive 
department  of  Illinois  in  the  last  fifty  years,  the  adaptability  of  this 
scheme  for  this  state  may  well  be  doubted.  Less  than  one-fourth  of 
the  boards,  commissions  and  offices  we  now  have  were  in  existence 
when  the  Constitutional  Convention  met  in  1870.  It  is  possible  that  the 
next  fifty  years  will  present  a similar  development.  Incorporation  of 
a detailed  plan  of  government  in  the  constitution  would  make  it  diffi- 
cult to  correlate  the  functions  of  the  various  departments.  Moreover, 
any  scheme  adopted  might  in  a few  years  prove  ill-adapted  to  the  con- 
stantly changing  and  increasing  functions  of  state  government.  The 
Massachusetts  constitutional  amendment  adopted  the  plan  of  insruc- 
ting  the  legislature  to  reorganize  the  executive  departments,  but  the 
detailed  plan  worked  out  by  legislation  in  Massachusetts  is  probably 
not  as  satisfactory  as  the  present  organization  in  Illinois. 

Short  ballot.  The  short  ballot  is  closely  related  to  all  problems 
of  executive  reorganization.  If  any  elective  state  officials  are  made 
appointive,  it  would  be  necessary  to  provide  that  the  present  state  offi- 
cials would  serve  the  rest  of  their  terms  regardless  of  the  change. 

It  has  been  suggested  that  the  Governor’s  power  of  appointment 
should  be  extended  to  include  some  of  the  officers  now  elected  by  the 
people.  The  United  States  government  and  several  of  the  states  have 
made  many  offices  appointive  which  are  elective  in  this  state.  The 
advocates  of  the  short  ballot  argue  that  the  increase  of  the  Governor’s 


705 


appointive  power  would  strengthen  state  government  by  providing  a 
unified  executive  department.  The  political  party  is  the  principal  bond 
of  union  among  the  elective  officers  of  the  executive  department.  The 
officers  have  a common  cause,  during  the  campaign,  but  afterward  their 
community  of  interest  is  liable  to  center  around  the  problem  of  re-elec- 
tion rather  than  the  coordination  of  the  branches  of  the  executive  de- 
partment. Almost  necessarily  some  of  the  elective  state  officers  will, 
after  they  are  in  office,  have  political  ambitions  which  run  counter  to 
the  interests  of  other  elective  state  officers. 

Persons  opposed  to  the  short  ballot  fear  the  centralization  of  so 
much  power  in  the  hands  of  the  chief  executive.  In  this  connection  it 
may  be  noted  that  the  president  appoints  the  United  States  marshals 
and  district  attorneys,  all  the  judges,  officers  of  the  army  and  navy, 
local  customs  and  internal  revenue  collectors,  a large  number  of  post- 
masters and  many  others.  In  Pennsylvania  the  secretary  of  the  com- 
monwealth, the  attorney  general  and  the  superintendent  of  public  in- 
struction are  appointed  by  the  Governor.  The  only  state  executive 
officer  elected  by  the  people  in  New  Jersey  and  in  several  other  states 
is  the  Governor.  A separate  bulletin  entitled  “The  Short  Ballot”  has 
been  issued  concerning  this  subject. 


Civil  Service.  Civil  service  is  another  important  problem  in 
state  government.  The  object  of  civil  service  regulations  is  to  get  the 
state  employes  out  of  politics  and  away  from  the  so-called  “spoils  sys- 
tem.” Civil  service  attempts  to  fill  administrative  offices  with  the  most 
fit  persons  available  without  regard  to  political  affiliations.  Most  of  the 
criticisms  of  the  system  have  arisen  from  the  fact  that  it  has  not  al- 
ways been  administered  in  good  faith. 

Concerning  the  attitude  of  legislatures  and  constitutional  conven- 
tions towards  this  subject,  a report  prepared  for  the  New  York  state 
constitutional  convention  makes  this  statement : 

“The  so-called  merit  system  of  civil  service  reform  originated  in  a 
laudable  effort  to  abolish  ‘the  spoils  system’  and  the  problem  of  the 
proper  conditions  of  public  employment  from  the  point  of  view  of  effi- 
cient service  to  the  state  and  justice  to  the  employes  has  never  received 
the  serious  consideration  of  any  constitution  or  law  making  body.”1 
The  constitutions  of  New  York,  Ohio,  California  and  Colorado 
contain  provisions  concerning  civil  service,  and  it  is  probable  that  some 
effort  will  be  made  to  have  the  principle  of  civil  service  recognized  in 
the  constitution.2 


Power  of  appointment  and  removal.  A brief  review  of  the 
powers  of  appointment  and  removal  under  the  present  constitution  may 
not  be  inappropriate.  These  powers  concern  the  legislative  and  judi- 


1 New  York  state  constitutional  convention  commission.  The  constitution 
and  government  of  the  state  of  New  York,  p.  3. 

2 See  Index  digest  of  state  constitutions,  p.  145;  The  civil  service  clause 
in  the  constitution.  In  Academy  of  Political  Science,  the  revision  of  the  state 
constitution,  1914,  pp.  251-262. 


706 


cial  departments  as  well  as  the  executive.  Under  the  constitution  the 
Governor,  with  the  advice  and  consent  of  the  Senate,  appoints  all  offi- 
cers whose  offices  are  established  by  the  constitution  or  by  law  and 
whose  appointment  or  election  is  not  otherwise  provided  for.  The 
Governor’s  power  to  appoint  did  not  begin  to  be  effective  until  the 
constitution  of  1848  forbade  legislative  appointments.  Since  1848  the 
General  Assembly,  when  it  has  established  new  offices,  has  ordinarily 
vested  the  power  of  appointment  in  the  Governor.  The  Governor’s 
appointing  power  has  thus  expanded  with  the  expansion  of  state  func- 
tions, and  its  present  extent  is  due  to  statutes  rather  than  to  the  con- 
sitution  alone. 

The  General  Assembly  has  a discretion  to  provide  that  appoint- 
ments to  new  statutory  offices  shall  be  made  by  the  Governor  with  the 
advice  and  consent  of  the  senate,  or  by  the  Governor  alone,  or  in  some 
other  manner,  provided  of  course,  that  it  does  not  itself  seek  to  make 
appointments.  Aside  from  the  general  authority  in  the  Governor  under 
article  5,  section  10,  just  referred  to  (which  vests  little  appointing 
power  in  the  Governor  in  the  absence  of  statute),  substantially  the  only 
constitutional  power  of  appointment  vested  in  the  Governor  is  that  to 
fill  certain  vacancies  in  elective  offices  (article  5,  section  20,  and  article 
6,  section  32).  Power  to  make  appointments  may  be  vested  in  other 
elective  constitutional  state  officers  or  in  a new  statutory  creation  such 
as  the  civil  service  commission. 

Not  only  this,  but  in  the  view  of  the  courts,  the  power  to  make 
appointments  is  not  peculiarly  a function  of  the  executive  department. 
“The  constitution  does  not  specifically  confer  the  power  to  appoint 
officers  on  any  department,  and  does  not  provide  that  the  officers  or 
employes  of  any  department  of  the  government  can  only  be  appointed 
by  that  department.”3 

In  at  least  one  case,  however,  the  court  has  said  that  an  appoint- 
ment could  properly  be  made  only  by  the  courts.4 

And  another  case  took  the  view  that  the  courts  could  not  be 
vested  with  power  over  the  appointment  and  removal  of  executive 
officers.5 

Even  though  the  power  of  appointment  may  constitutionally  be 
regarded  as  not  a purely  executive  function,  the  fact  remains  that  it  is 
a function  primarily  exercised  by  the  executive  department  and  that 
the  Governor  either  acting  alone  or  by  and  with  the  advice  and  consent 
of  the  Senate,  controls  .the  appointment  to  all  places  of  importance  in 
the  state  government  that  have  been  created  by  statute.  With  respect  to 
the  Governor’s  power  in  this  matter  therefore,  the  important  questions 
are:  (1)  that  as  to  whether  the  appointing  power  shall  be  increased 
by  reducing  the  number  of  elective  state  officers  ; and  (2)  that  as  to  the 
continuance  of  Senate  confirmation. 

Under  the  express  provisions  of  the  constitution,  the  power  of 
removal  is  much  more  complicated  than  that  of  appointment.  By 
article  5,  section  12,  the  Governor  has  “power  to  remove  any  officer 
whom  he  may  appoint,  in  case  of  incompetency,  neglect  of  duty,  or  mal- 

3 People  v.  Brady,  275  111.  261  (1916). 

4 Witter  v.  Cook  County  Commissioners,  256  111.  616  (1912). 

8 City  of  Aurora  v.  Schoeberlein,  230  111.  496  (1907). 


707 


feasance  in  office.”  This  power  of  the  Governor  extends  to  all  appoint- 
ments made  either  by  him  alone  or  with  the  advice  and  consent  of  the 
senate,  and  in  exercising  the  power  the  Governor  need  not  hold  hear- 
ings or  assign  reasons.6 

In  the  case  of  People  v.  Nellis,7  the  court  held  that  it  was  proper 
for  the  General  Assembly  to  vest  in  the  Governor  power  to  remove  a 
sheriff  under  certain  conditions,  even  though  the  sheriff  is  elected  for 
a term  fixed  by  the  constitution,  and  the  same  principle  would  seem 
to  apply  to  all  other  county  officers  created  by  the  constitution. 

The  process  of  impeachment  applies  to  “the  Governor  and  all  other 
civil  officers  of  the  state”  (article  5,  section  15).  By  article  6,  section 
30,  the  General  Assembly  may  “for  cause  entered  on  the  journals,  upon 
due  notice  and  opportunity  of  defense,  remove  from  office  any  judge 
upon  concurrence  of  three-fourths  of  all  the  members  elected,  of  each 
house.”  Inasmuch  as  judges  are  civil  officers  of  the  state,  they  are 
subject  to  removal  either  by  impeachment  or  by  action  under  article  6, 
section  30,  although  other  civil  officers  of  the  state  (except  as  covered 
by  the  second  sentence  of  article  6,  section  30),  are  apparently  remov- 
able only  on  impeachment.  The  power  of  impeachment  apparently 
does  not  apply  to  officers  expressly  designated  by  the  constitution  as 
county  officers. 

The  second  sentence  of  article  6,  section  30,  provides  that  all  offi- 
cers other  than  judges  mentioned  in  the  judicial  article  “shall  be  re- 
moved from  office  on  prosecution  and  final  conviction,  for  misdemeanor 
in  office.”  and  this  method  of  removal  seems  to  be  exclusive  of  any 
other  methods.  Officers  other  than  judges  mentioned  in  the  judicial 
article  include:  boards  of  county  commissioners8  (Article  6,  section 
17)  ; state’s  attorneys  (article  6,  section  22)  ; the  reporter  of  the  Su- 
preme Court  (article  6,  section  9)  ; certain  clerks  of  courts  (article 
6,  sections  10,  18,  27)  ; and  apparently  justices  of  the  peace.9  The 
state’s  attorney  who  controls  the  machinery  of  prosecution  is  removable 
only  on  prosecution  and  conviction. 

Statutes  vesting  powers  of  appointment  in  officers  other  than  the 
Governor  may  also  vest  a power  of  removal  in  such  officers.  Under 
the  civil  service  law  before  1917,  the  civil  service  commission  had 
large  control  not  only  over  the  appointment  but  also  over  the  removal 
of  employes  in  the  classified  civil  service.  By  amendment  of  1917, 
however,  power  to  remove  subordinates  vests  in  the  head  of  an  office, 
subject  to  review  by  the  civil  service  commission  if  removal  is  alleged 
to  be  for  political,  racial  or  religious  causes. 

Removal  by  impeachment  and  by  three-fourths  of  the  two  houses 
of  the  General  Assembly  have  never  been  employed  in  this  state  and 
are  unlikely  to  be  employed,  unless  extraordinary  conditions  develop 
in  a particular  case.  These  methods  may,  therefore,  be  practically  dis- 
regarded as  elements  to  be  considered.  Although  more  easily  capable 
of  use,  the  same  statement  applies  to  a large  extent  to  removal  of  cer- 

0 Wilcox  v.  People,  90  111.,  186  (1878). 

7 249  111.  12  (1911).  See,  also,  Donahue  v.  County  of  Will,  100  111.  94. 

8 But  not  the  Cook  county  board.  See  People  v.  McCormick,  261  111.,  413 
(1914). 

•Compare  section  21  with  section  28,  and  see  Report  and  Opinions  of  the 
Attorney  General,  1914,  pages  161,  1200. 


708 


tain  officers  upon  conviction  of  misdemeanor  in  office.  These  three 
methods  of  removal  are  of  small  value  as  means  of  controlling  the  ordi- 
nary conduct  of  public  officers. 

The  power  of  the  Governor  under  the  constitution  to  remove  offi- 
cers whom  he  may  appoint,  and  the  statutory  power  of  certain  other 
officers  to  remove  their  subordinates,  are  the  only  effective  powers  of 
removal  now  existing  in  the  state  government,  although  the  principle 
laid  down  fn  the  Nellis  case  is  capable  of  effective  application.  The 
important  questions  facing  the  constitutional  convention  with  respect 
to  this  matter  are : ( 1 ) whether  the  Governor  should  be  given  power 

to  appoint  some  officers  now  elective,  such  wid^r  appointing  power  car- 
rying with  it  automatically  a similar  increase  in  power  of  removal. 
(2)  Whether  the  Governor  should  be  given  some  express  power  of 
removal  over  state  and  local  officers  who  are  to  remain  elective.  (3) 
Whether  some  change  should  not  be  made  with  respect  to  removals 
upon  conviction  of  misdemeanor  in  office. 


Enforcement  of  law  by  local  officials.  The  control  which  the 
executive  should  be  given  over  local  officials  is  another  problem  for  the 
framers  of  the  constitution.  Some  such  control  is  important  in  the 
enforcement  of  the  laws.  The  executive  departments  exercise  a slight 
control  over  local  officials  in  the  suppression  of  contagious  diseases, 
assessments  of  property,  distribution  of  the  common  school  fund, 
appointment  of  county  superintendents  of  highways  and  county  mine 
inspectors,  inspection  of  hospitals,  sanitariums  and  various  local  char- 
itable institutions,  the  collection  of  vital  statistics  and  a few  other  cases. 
The  Governor  has  the  power  to  remove  the  sheriff  in  case  a prisoner  is 
taken  from  his  custody  by  a mob  through  his  fault. 


Problem  before  convention.  The  constitutional  convention  is 
confronted  with  the  problem  of  framing  an  executive  article  in  a new 
constitution  broad  enough  to  form  the  basis  for  the  operation  of  an  effi- 
cient executive  department.  The  functions  of  state  government  are 
constantly  changing  and  increasing,  and  it  is  necessary  to  have  broad 
costitutional  provisions  for  the  proper  exercise  of  these  functions. 
Details  of  executive  organization  in  a constitution  will  occasion  great 
practical  difficulty,  if  the  activities  of  the  government  of  Illinois  in- 
crease during  the  next  fifty  years  in  a manner  at  all  comparable  to  their 
increase  during  the  past  half  century. 


709 


APPENDIX  NO.  1.  REFERENCES. 


Academy  of  Political  Science.  The  revision  of  the  state  constitution. 
N.  Y.,  1914.  (Proceedings,  V.  5,  No.  1,  October,  1914.) 

Constitutional  provision  for  a budget.  By  Frederick  A.  Cleveland, 
pp.  141-192. 

The  civil  service  clause  in  the  constitution.  By  Samuel  H.  Ord- 
way,  pp.  251-262. 

Alexander,  Margaret  C.  The  development  of  the  power  of  the  state 
executive  with  special  reference  to  the  state  of  New  York,  1917. 
• (Smith  College  Studies  in  History,  V.  2,  No.  3.  April,  1917.) 

Beard,  Chas.  A.,  and  Shultz,  Birl  E.  Documents  on  the  state-wide 
initiative,  referendum,  and  recall.  N.  Y.,  1912. 

VI  Appendix.  The  proposed  Oregon  system,  pp.  349-383. 

Buck,  A.  E.  Administrative  consolidation  in  state  governments. 
Phila.,  1919.  (Supplement  to  the  National  Municipal  Review,  V.  8, 
No.  9,  November,  1919.) 

Chicago.  Bureau  of  Public  Efficiency.  The  park  governments  of  Chi- 
cago. An  inquiry  into  their  organization  and  methods  of  administra- 
tion. Chicago,  1911. 

Fairlie,  John  A.  The  state  governor,  1912.  (Reprinted  from  Mich- 
igan Law  Review,  V.  10,  Nos.  5 and  6.) 

Holcombe,  Arthur  N.  State  government  in  the  United  States.  N.  Y., 
1916. 

Illinois.  Directors  of  departments  under  civil  administrative  code. 
First  administrative  report.  1917-18.  Springfield,  1918. 

Illinois.  Educational  commission.  Final  report,  1911.  (In  the  Illinois 
Superintendent  of  public  instruction.  Biennial  report.  1908-1910. 
pp.  256-475.) 

Illinois.  Efficiency  and  economy  committee.  Report.  Chicago,  1915. 

Revenue  and  finance  administration.  By  John  A.  Fairlie. 

Educational  administration.  By  John  M.  Mathews. 

Supervision  of  corporations.  By  Maurice  H.  Robinson. 

Secretary  of  state  and  law  officers. 

Illinois.  Special  investigating  committee  appointed  by  Hon.  Edward 
D.  Shurtleff,  Speaker,  in  accordance  with  House  Res.  No.  78,  and 
resolutions  amendatory  thereto,  Jan.  14,  1908. 

Chicago  1908.  (An  investigation  of  state  institutions.) 

Lauchheimer,  Malcolm  H.  The  governor  under  the  constitution.  St. 
Louis,  1916.  (American  Law  Review.  V.  50,  No.  5,  Sept.-Oct.* 
1916,  pp.  707-729.) 

Massachusetts.  Commission  to  compile  information  and  data  for  the 
use  of  the  constitutional  convention.  Bulletins.  Boston,  1918,  2v. 

No.  3.  The  abolition  of  the  Governor’s  Council. 


710 


No.  4.  The  pardoning  power. 

No.  10.  The  short  ballot. 

Massachusetts.  Constitutional  convention.  1917-1918.  Debates  in 
the  Massachusetts  Constitutional  Convention.  1917-1918.  Boston, 
1919.  2v. 

Mathews,  John  Mabry.  Principles  of  American  state  administration. 
N.  Y.,  1917. 

New  York.  Committee  on  retrenchment  of  the  reconstruction  com- 
mission. Draft  of  summary  of  report  on  retrenchment  and  reorgani- 
zation in  the  state  government.  N.  Y.,  1919. 

New  York.  Constitutional  convention  commission.  The  constitution 
and  government  of  the  state  of  New  York.  Albany,  1915. 

O’Neal,  Emmet.  Reorgnizing  the  state  governments.  1918.  (Con- 
stitutional Review,  V.  2.  No.  4,  October,  1918.) 

U.  S.  Education  Bureau.  A manual  of  education  legislation  for  the 
guidance  of  committees  on  education  in  the  state  legislatures.  Wash., 
1919.  (Bui.,  1919,  No.  4.) 

U.  S.  Public  health  service.  Public  health  administration  in  Illinois. 
By  S.  B.  Grubbs.  Wash.,  1915.  (Public  health  reports  reprint,  No. 
275,  May  21,  1915.) 


711 


APPENDIX  NO.  2.  TEXT  OF  ARTICLE  V.  CONSTITUTION 

OF  ILLINOIS. 


Article  V. 


Executive  Department. 

Section  1.  The  executive  department  shall  consist  of  a Governor, 
lieutenant-governor,  secretary  of  state,  auditor  of  public  accounts, 
treasurer,  superintendent  of  public  instruction  and  attorney  general, 
who  shall  each,  with  the  exception  of  the  treasurer,  hold  his  office  for 
the  term  of  four  years  from  the  second  Monday  of  January  next  after 
his  election  and  until  his  successor  is  elected  and  qualified.  They  shall, 
except  the  lieutenant-governor,  reside  at  the  seat  of  government  during 
their  term  of  office,  and  keep  the  public  records,  books  and  papers  there, 
and  shall  perform  such  duties  as  may  be  prescribed  by  law. 

Sec.  2.  The  treasurer  shall  hold  his  office  for  the  term  of  two 
years,  and  until  his  successor  is  elected  and  qualified ; and  shall  be 
ineligible  to  said  office  for  two  years  next  after  the  end  of  the  term  for 
which  he  was  elected.  He  may  be  required  by  the  Governor  to  give 
rasonable  additional  security,  and  in  default  of  so  doing  his  office  shall 
be  deemed  vacant. 

Sec.  3.  An  election  for  Governor,  lieutenant-governor,  secretary 
of  state,  auditor  of  public  accounts  and  attorney  general  shall  be  held 
on  the  Tuesday  next  after  the  first  Monday  of  November,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  seventy-two,  and  every 
four  years  thereafter;  for  superintendent  of  public  instruction,  on  the 
Tuesday  next  after  the  first  Monday  of  November  in  the  year  one  thou- 
sand eight  hundred  and  seventy,  and  every  four  years  thereafter ; and 
for  treasurer  on  the  day  last  above  mentioned,  and  every  two  years 
thereafter,  at  such  places  and  in  such  manner  as  may  be  prescribed  by 
law. 

Sec.  4.  The  returns  of  every  election  for  the  above  named  officers 
shall  be  sealed  up  and  transmitted  by  the  returning  officers  to  the  secre- 
tary of  state  directed  to  the  “Speaker  of  the  House  of  Representa- 
tives,” who  shall,  immediately  after  the  organization  of  the  House  and 
before  proceeding  to  other  business,  open  and  publish  the  same  in  the 
presence  of  a majority  of  each  House  of  the  General  Assembly,  who 
shall,  for  that  purpose,  assemble  in  the  hall  of  the  House  of  Repre- 
sentatives. The  person  having  the  highest  number  of  votes  for  either 
of  said  offices  shall  be  declared  duly  elected  ; but  if  two  or  more  have  an 
equal,  and  the  highest  number  of  votes,  the  General  Assembly  shall,  by 
joint  ballot,  choose  one  of  such  persons  for  said  office.  Contested  elec- 
tions for  all  of  said  offices  shall  be  determined  by  both  houses  of  the 


712 


General  Assembly,  by  joint  ballot,  in  such  manner  as  may  be  prescribed 
by  law. 

Sec.  5.  No  person  shall  be  eligible  to  the  office  of  Governor  or 
lieutenant-governor  who  shall  not  have  attained  the  age  of  30  years, 
and  been,  for  five  years  next  preceding  his  election,  a citizen  of  the 
United  States  and  of  this  state.  Neither  the  Governor,  lieutenant- 
governor,  auditor  of  public  accounts,  secretary  of  state,  superintendent 
of  public  instruction,  nor  attorney  general  shall  be  eligible  to  any  other 
office  during  the  period  for  which  he  shall  have  been  elected. 

Sec.  6.  The  supreme  executive  power  shall  be  vested  in  the  Gov- 
ernor, who  shall  take  care  that  the  laws  be  faithfully  executed. 

Sec.  7.  The  Governor  shall,  at  the  commencement  of  each  session 
and.  at  the  close  of  his  term  of  office,  give  to  the  General  Assembly 
information,  by  message,  of  the  condition  of  the  State,  and  shall  recom- 
mend such  measures  as  he  shall  deem -expedient.  He  shall  account  to 
the  General  Assembly,  and  accompany  his  message  with  a statement  of 
all  moneys  received  and  paid  out  by  him  from  any  funds  subject  to 
his  order,  with  vouchers,  and  at  the  commencement  of  each  regular  ses- 
sion, present  estimates  of  the  amount  of  money  required  to  be  raised 
by  taxation  for  all  purposes. 

Sec.  8.  The  Governor  may,  on  extraordinary  occasions,  convene 
the  General  Assembly,  by  proclamation,  stating  therein  the  purpose  for 
which  they  are  convened,  and  the  General  Assembly  shall  enter  upon 
no  business  except  that  for  which  they  were  called  together. 

Sec.  9.  In  case  of  a disagrement  between  the  two  houses  with 
respect  to  the  time  of  adjournment,  the  Governor  may,  on  the  same 
being  certified  to  him  by  the  house  first  moving  the  adjournment, 
adjourn  the  General  Assembly  to  such  time  as  he  thinks  proper,  not 
beyond  the  first  day  of  the  next  regular  session. 

Sec.  10.  The  Governor  shall  nominate,  and  by  and  with  the  ad- 
vice and  consent  of  the  Senate  (a  majority  of  all  the  Senators  elected 
concurring  by  yeas  and  nays),  appoint  all  officers  whose  offices  are 
established  by  this  Constitution,  or  which  may  be  created  by  law,  and 
whose  appointment  or  election  is  not  otherwise  provided  for ; and  no 
such  officer  shall  be  appointed  or  elected  by  the  General  Assembly. 

Sec.  11.  In  case  of  a vacancy,  during  the  recess  of  the  Senate, 
in  any  office  which  is  not  elective,  the  Governor  shall  make  a temporary 
appointment  until  the  next  meeting  of  the  Senate,  when  he  shall  nomi- 
nate some  persons  to  fill  such  office ; and  any  person  so  nominated  who 
is  confirmed  by  the  Senate  (a  majority  of  all  the  Senators  elected 
concurring  by  yeas  and  nays),  shall  hold  his  office  during  the  remain- 
der of  the  term,  and  until  his  successor  shall  be  appointed  and  qualified. 
No  person,  after  being  rejected  by  the  Senate,  shall  be  again  nomi- 
nated for  the  same  office  at  the  same  session,  unless  at  the  request  of 
the  Senate,  or  be  appointed  to  the  same  office  during  the  recess  of  the 
General  Assembly. 

Sec.  12.  The  Governor  shall  have  power  to  remove  any.  officer 
whom  he  may  appoint,  in  case  of  incompetencv,  neglect  of  duty  or 
malfeasance  in  office ; and  he  may  declare  his  office  vacant  and  fill  the 
same  as  is  herein  provided  in  other  cases  of  vacancy. 


713 


Sec.  13.  The  Governor  shall  have  power  to  grant  reprieves,  com- 
mutations and  pardons,  after  conviction,  for  all  offenses,  subject  to 
such  regulations  as  may  be  provided  by  law  relative  to  the  manner  of 
applying  therefor. 

Sec.  14.  The  Governor  shall  be  commander-in-chief  of  the  mili- 
tary and  naval  forces  of  the  State  (except  when  they  shall  be  called 
into  the  service  of  the  United  States),  and  may  call  out  the  same  to 
execute  laws,  suppress  insurrection  and  repel  invasion. 

Sec.  15.  The  Governor  and  all  civil  officers  of  the  State  shall  be 
liable  to  impeachment  for  any  misdemeanor  in  office. 

Sec.  16.  Every  bill  passed  by  the  General  Assembly  shall, 
before  it  becomes  a law,  be  presented  to  the  Governor.  If  he  approve, 
he  shall  sign  it,  and  thereupon  it  shall  become  a law ; but  if  he  do  not 
approve,  he  shall  return  it,  with  his  objections,  to  the  house  in  which  it 
shall  have  originated,  which  house  shall  enter  the  objections  at  large 
upon  its  journal  and  proceed  to  reconsider  the  bill.  If  then  two- 
thirds  of  the  members  elected  agree  to  pass  the  same,  it  shall  be  sent, 
together  with  the  objections,  to  the  other  House,  by  which  it  shall 
likewise  be  reconsidered ; and  if  approved  by  two-thirds  of  the  mem- 
bers elected  to  that  house,  it  shall  become  a law,  notwithstanding  the 
objections  of  the  Governor ; but  in  all  such  cases  the  vote  of  each  house 
shall  be  determined  by  yeas  and  nays,  to  be  entered  upon  the  journal. 
*Bills  making  appropriations  of  money  out  of  the  treasury  shall  spec- 
ify the  objects  and  purposes  for  which  the  same  are  made,  and  appro- 
priate to  them  respectively  their  several  amounts  in  distinct  items  and 
sections.  And  if  the  Governor  shall  not  approve  any  one  or  more  of 
the  items  or  sections  contained  in  any  bill,  but  shall  approve  the  residue 
thereof,  it  shall  become  a law,  as  to  the  residue,  in  like  manner  as  if  he 
had  signed  it.  The  Governor  shall  then  return  the  bill,  with  his  objec- 
tions to  the  items  or  sections  of  the  same  not  approved  by  him,  to  the 
house  in  which  the  bill  shall  have  originated,  which  house  shall  enter 
the  objections  at  large  upon  its  journal,  and  proceed  to  reconsider  so 
much  of  said  bill  as  is  not  approved  by  the  Governor.  The  same  pro- 
ceedings shall  be  had  in  both  houses  in  reconsidering  the  same  as  is 
hereinbefore  provided  in  case  of  an  entire  bill  returned  by  the  Gover- 
nor with  his  objections ; and  if  any  item  or  section  of  said  bill  not  ap- 
proved by  the  Governor  shall  be  passed  by  two-thirds  of  the  members 
elected  to  each  of  the  two  houses  of  the  General  Assembly,  it  shall 
become  part  of  said  law,  notwithstanding  the  objections  of  the  Gover- 
nor.* Anv  bill  which  shall  not  be  returned  by  the  Governor  within 
ten  days  (Sundays  excepted)  after  it  shall  have  been  presented  to  him, 
shall  become  a law  in  like  manner  as  if  he  had  signed  it,  unless  the 
General  Assembly  shall  by  their  adjournment  prevent  its  return,  in 
which  case  it  shall  be  filed  with  his  objections  in  the  office  of  the  Secre- 
tary of  State,  within  ten  days  after  such  adjournment,  or  become  a 
law.1 

1 As  modified  by  the  third  amendment  to  the  Constitution  of  1870.  The  joint 
resolution  (L.  1883.  p.  186)  was  adopted  by  the  Senate  February  28,1883, 'con- 
curred in  by  the  House  May  23.  1883,  and  ratified  by  the  vote  of  the  people 
November  4,  1884,  and  proclaimed  adopted  November  28,  1884. 

The  amendment  is  practically  the  original  section  with  the  addition  of  the 
paragraphs  between  the  (* — *)  and  the  substitution  of  the  italicized  word  upon 
for  the  original  word  “on.” 


714 


Sec.  17.  In  case  of  the  death,  conviction  or  impeachment,  failure 
to  qualify,  resignation,  absence  from  the  state,  or  other  disability  of 
the  Governor,  the  powers,  duties  and  emoluments  of  the  office  for  the 
residue  of  the  term,  or  until  the  disability  shall  be  removed,  shall  de- 
volve upon  the  lieutenant  governor. 

Sec.  18.  The  lieutenant  governor  shall  be  president  of  the  Senate, 
and  shall  vote  only  when  the  Senate  is  equally  divided.  The  Senate 
shall  choose  a president,  pro  tempore , to  preside  in  case  of  the  absence 
or  impeachment  of  the  lieutenant  governor,  or  when  he  shall  hold 
office  of  Governor. 

Sec.  19.  If  there  be  no  lieutenant  governor,  nor  if  the  lieutenant 
governor  shall,  for  any  of  the  causes  specified  in  section  seventeen  of 
this  article,  become  incapable  of  performing  the  duties  of  the  office, 
the  president  of  the  Senate  shall  act  as  Governor  until  the  vacancy  is 
filled  or  the  disability  removed ; and  if  the  president  of  the  Senate,  for 
any  of  the  above  named  causes,  shall  become  incapable  of  performing 
the  duties  of  Governor,  the  same  shall  devolve  upon  the  speaker  of  the 
House  of  Representatives. 

Sec.  20.  If  the  office  of  auditor  of  public  accounts,  treasurer, 
secretary  of  state,  attorney  general,  or  superintendent  of  public  in- 
struction shall  be  vacated  by  death,  resignation  or  otherwise,  it  shall  be 
the  duty  of  the  Governor  to  fill  the  same  by  appointment,  and  the 
appointee  shall  hold  his  office  until  his  successor  shall  be  elected  and 
qualified  in  such  a manner  as  provided  by  law.  An  account  shall  be 
kept  by  the  officers  of  the  executive  department,  and  of  all  the  public 
institutions  of  the  state,  of  all  moneys  received  or  disbursed  by  them, 
severally,  from  all  sources,  and  for  every  service  performed,  and  a 
semi-annual  report  thereof  be  made  to  the  Governor,  under  oath ; and 
any  officer  who  makes  a false  report  shall  be  guilty  of  perjury,  and 
punished  accordingly. 

Sec.  21.  The  officers  of  the  executive  department,  and  all  the 
public  institutions  of  the  state,  shall,  at  least  ten  days  preceding  each 
regular  session  of  the  General  Assembly,  severally  report  to  the  Gov- 
ernor, who  shall  transmit  such  reports  to  the  General  Assembly  togeth- 
er with  the  reports  of  the  judge  of  the  Supreme  Court  of  defects  in 
the  constitution  and  laws ; and  the  Governor  may  at  any  time  require 
information  in  writing,  under  oath,  from  the  officers  of  the  executive 
department,  and  all  officers  and  managers  of  state  institutions,  upon 
any  subject  relating  to  the  condition,  management  and  expenses  of 
their  respective  offices. 

Sec.  22.  There  shall  be  a seal  of  the  state,  which  shall  be  called 
the  “Great  Seal  of  the  State  of  Illinois,”  which  shall  be  kept  by  the 
secretary  of  state,  and  used  by  him,  officially,  as  directed  by  law. 

Sec.  23.  The  officers  named  in  this  article  shall  receive  for  their 
services  a salary,  to  be  established  by  law,  which  shall  not  be  increased 
or  diminished  during  their  official  terms,  and  they  shall  not,  after  the 
expiration  of  the  terms  of  those  in  office  at  the  adoption  of  this  Con- 
stitution, receive  to  their  own  use  any  fees,  costs,  perquisites  of  office, 
or  other  compensation.  And  all  fees  that  may  hereafter  be  payable  by 
law  for  any  services  performed  by  any  officer  provided  for  in  this 


715 


article  of  the  Constitution,  shall  be  paid  in  advance  into  the  State 
treasury. 

Sec.  24.  An  office  is  a public  position  created  by  the  Constitution 
or  law,  continuing  during  the  pleasure  of  the  appointing  power,  or  for 
a fixed  time,  with  a successor  elected  or  appointed.  An  employment  is 
an  agency,  for  a temporary  purpose,  which  ceases  when  that  purpose  is 
accomplished. 

Sec.  25.  All  civil  officers,  except  members  of  the  General  As- 
sembly and  such  inferior  officers  as  may  be  by  law  exempted,  shall, 
before  they  enter  on  the  duties  of  their  respective  offices,  take  and  sub- 
scribe the  following  oath  or  affirmation : 

“I  do  solemnly  swear  (or  affirm,  as  the  case  may  be)  that  I will 
support  the  Constitution  of  the  United  States  and  the  Constitution  of 
the  State  of  Illinois,  and  that  I will  faithfully  discharge  the  duties  of 

the  office  of according  to  the  best  of  my 

ability.” 

And  no  other  oath,  declaration  or  test  shall  be  required  as  a 
qualification. 


CONSTITUTIONAL  CONVENTION 


BULLETIN  No.  10 


The  Judicial  Department,  Jury, 
Grand  Jury  and  Claims 
Against  the  State 


Compiled  and  Published  by  the 

LEGISLATIVE  REFERENCE  BUREAU 

Springfield,  Illinois 


[Printed  by  authority  of  the  State  of  Illinois.] 


LEGISLATIVE  REFERENCE  BUREAU. 


Governor  Frank  O.  Lowden,  Chairman. 
Senator  Edward  C.  Curtis,  Grant  Park. 
Senator  Richard  J.  Barr,  Joliet. 
Representative  Edward  J.  Smejkal,  Chicago. 
Representative  William  P.  Holaday,  Danville. 


E.  J.  Verlie,  Secretary. 

W.  F.  Dodd,  in  charge  collection  of  data  for 
constitutional  convention. 


TABLE  OF  CONTENTS. 


PAGE. 

I.  Summary  725 

II.  Development  of  the  judicial  organization  of 

ILLINOIS 727 

The  constitution  of  1818 727 

The  constitution  of  1848 730 

Legislation  under  the  constitution  of  1848 732 

Proposed  constitution  of  1862 733 

The  constitution  of  1870 734 

Legislation  under  the  constitution  of  1870 735 

Supreme  court 736 

Appellate  courts 736 

Circuit  courts  and  superior  court  of  Cook  County.  . . .737 

Probate  courts 737 

City  courts 737 

Municipal  court  of  Chicago 737 

Summary  738 

III.  Structure  of  the  present  judicial  organization  of 

ILLINOIS  740 

The  supreme  court 740 

Organization  740 

Original  j urisdiction 742 

Appellate  jurisdiction 742 

The  appellate  courts 744 

Organization  744 

Jurisdiction  745 

Circuit  courts . • • 746 

Organization  746 

Jurisdiction  747 

Circuit,  superior  and  criminal  courts  of  Cook  County.  . . .748 

County  courts 749 

Probate  courts 751 

City  courts 752 

The  municipal  court  of  Chicago 753 

Justices  of  the  peace  and  police  magistrates 753 


CONTENTS— Continued. 


PAGE. 

IV.  Analysis  of  the  working  of  the  judicial  organiza- 
tion IN  ILLINOIS 755 

Court  geography  of  Illinois 755 

Jurisdictional  relationships 757 

Types  of  down-state  counties 757 

Appeals 760 

The  constituent  parts  of  the  judicial  organization 761 

The  justice  of  the  peace  courts 762 

County  and  probate  courts 764 

City  courts  * 767 

Circuit  courts 768 

Summary  of  the  down-state  judicial  organization 771 

The  judicial  situation  in  Chicago  and  Cook  Count} 773 

The  justice  of  the  peace  system  in  Cook  County  outside 

of  Chicago  775 

The  city  court  of  Chicago  Heights 776 

The  municipal  court  of  Chicago 776 

County  court  of  Cook  County.' 779 

Probate  court  of  Cook  County 780 

Circuit  and  superior  courts  of  Cook  County 781 

The  criminal  court  of  Cook  County 784 

Summary  of  judicial  situation  in  Chicago  and  Cook 

County  784 

Appellate  courts  and  supreme  court 786 

V.  Problems  of  judicial  organization  in  Illinois.  790 

Character  of  judicial  article 790 

Unified  court 793 

Rules  of  court 803 

System  of  appeals 806 

Proposals  of  a less  fundamental  character 809 

Probate  matters  809 

Testamentary  trusts  809 

Construction  of  wills 809 

Trials  de  novo  809 

City  and  county  courts 810 

Qualifications  of  judicial  officers 810 

Masters — court  commissioners  810 

Public  defender 811 

State’s  attorneys  811 

Uniformity  of  jurisdiction 811 


CONTENTS— Continued. 

PAGE. 

V.  Problems  of  judicial  organization  in  Illinois — Con- 
cluded 

Coroners  812 

Justices  of  the  peace 812 

Suggestions  covered  in  other  chapters  of  this  bulletin. 813 

VI.  Election  and  tenure  of  judges 814 

The  Illinois  problem 815 

Situation  outside  of  Cook  County 816 

The  Cook  County  situation 817 

Methods  of  selecting  judges 817 

Methods  of  electing  judges  of  the  supreme  court 820 

Tenure 822 

Removal  of  judges 822 

Retirement 824 

Vacancies 825 

Additional  judges,  temporary  vacancies  and  ad  litem 
appointments  825 

VII.  Indictment  and  information 828 

Constitutional  and  statutory  provisions  in  Illinois 828 

Proceedings  in  commitment  and  indictment 830 

Formal  requisites  of  the  indictment 831 

Criticisms  of  the  grand  jury 832 

The  grand  jury  in  other  states 833 

Conclusions 835 

VIII.  Trial  by  jury 837 

Constitutional  and  statutory  provisions.  ...  837 

Operation  of  the  jury  system  in  Illinois 840 

Suggested  changes  in  jury  system 842 

Jury  trial  in  other  states 843 

Number  necessary  to  render  a verdict 843 

Number  of  jurors 844 

Waiver  of  jury 845 

Operation  of  changes  in  jury  system 846 

Suggested  changes  in  criminal  jury 846 

IX.  Power  of  the  courts  to  declare  laws  unconstitu- 
tional   847 

Development  of  power  in  Illinois 847 

Proposals  with  respect  to  judicial  power 850 


CONTENTS— Concluded. 


PAGE. 

IX.  Power  of  the  courts  to  declare  laws  unconstitu- 
tional— Concluded. 

Comments  upon  proposals 859 

Advisory  opinions 861 

X.  Claims  against  the  state 864 

Development  in  Illinois 864 

Interpretation  of  the  constitution  of  Illinois 865 

Claims  against  the  state  in  federal  courts 866 

Claims  against  the  state  under  the  constitution  of  1870.  .867 

Work  of  the  court  of  claims 868 

Claims  against  the  United  States 870 

New  York  commission  of  claims 871 

Provisions  in  other  states 872 

Conclusions 873 

Appendix  no.  1.  References  875 

Appendix  no.  2.  Judicial  provisions  of  the  constitution  of 

Illinois  876 

Appendix  no.  3.  Tables 885 

(1)  Population  of  supreme  court  election  districts  by 

counties  885 

(2)  Population  of  appellate  court  districts  by  counties.  .886 

(3)  Population  of  judicial  circuits  by  counties 888 

(4)  Area  and  population  of  counties,  together  with 

salaries  of  state’s  attorneys  and  county  and  pro- 
bate judges 892 

(5)  City  courts 893 

(6)  Down  state  judges  holding  court  in  Chicago 894 

(7)  Summary  of  work  of  appellate  courts  1910  to  1918..  .895 

(8)  Tables  indicating  work  of  supreme  court  1910  to 

1919  896 


I.  SUMMARY.  . 


This  bulletin  presents  a detailed  survey  of  the  organization  and 
operation  of  the  present  judicial  system  of  Illinois,  together  with  a 
brief  review  of  proposals  of  change.  The  judicial  power  to  declare 
laws  unconstitutional  has  been  much  discussed,  and  a separate  chapter 
has  been  devoted  to  this  subject.  The  jury  and  grand  jury  constitute 
an  integral  part  of  the  judicial  system  and 'are  therefore  treated  in 
this  bulletin,  rather  than  in  the  bulletin  on  the  bill  of  rights. 

The  constitution  expressly  provides  that  the  state  shall  never  be 
made  defendant  in  any  court  of  law  or  equity,  but  the  subject  of 
claims  against  the  state  bears  a close  relation  to  judicial  functions  and 
has  therefore  been  discussed  in  this  bulletin.  In  Bulletin  No.  4 on 
State  and  Local  Finance  will  be  found  comments  upon  private  claims 
in  connection  with  the  appropriation  policy  of  the  state. 

Bulletin  No.  14  on  Economic  and  Industrial  problems  contains 
a discussion  of  injunctions  in  labor  cases.  This  subject,  while  one 
with  respect  to  the  exercise  of  a judicial  function,  did  not  seem  to 
bear  a close  relationship  to  the  other  problems  discussed  in  this  bulle- 
tin. Judicial  appointments  and  the  removal  of  judicial  officers  are 
dealt  with  briefly  in  this  bulletin.  The  subject  of  removals  through 
legislative  action  is  discussed  in  Bulletin  No.  8 on  the  legislative  de- 
partment; and  a review  of  the  appointing  and  removing  power  will 
be  found  in  Bulletin  No.  9,  on  the  executive  department.  In  Bulletin 
No.  9 will  also  be  found  a brief  discussion  of  the  pardoning  power. 

In  a review  of  the  judicial  organization  of  this  state,  the  things 
which  stand  out  most  clearly  are  (1)  the  lack  of  unity  in  the 
organization  and  (2)  the  overlapping  of  jurisdiction  of  the  several 
trial  courts.  The  lack  of  unity  in  the  judicial  system  makes  it  diffi- 
cult to  obtain  information  about  all  parts  of  the  judicial  organization, 
and  in  this  study  it  has  been  necessary  to  investigate  in  detail  the 
working  of  the  courts  in  typical  counties  and  circuits.  The  shortness 
of  time  rendered  it  impossible  to  investigate  all  counties  and  all 
circuits. 

The  lack  of  unity  and  overlapping  of  jurisdiction  are  really  but 
two  aspects  of  the  same  problem,  for  under  a unified  judicial  system 
there  would  almost  necessarily  be  less  duplication  of  court  machinery. 
The  lack  of  unity  and  the  overlapping  of  jurisdictions  appear  more 
clearly  in  Cook  County  than  in  other  counties  of  the  state,  because  of 
the  larger  amount  of  judicial  business  in  that  county.  The  Municipal 
Court  of  Chicago,  whose  creation  was  made  possible  by  the  constitu- 
tional amendment  of  1904,  is  the  one  example  in  the  state  of  a large 
court  with  a unified  organization,  but  the  unity  in  this  case  is  one 
merely  within  that  court  itself,  and  there  is  no  unity  of  judicial  organi- 
zation among  the  several  courts  exercising  jurisdiction  within  Cook 
County. 


726 


If  steps  are  taken  toward  a more  unified  court  organization,  it 
will  hardly  be  the  function  of  the  constitutional  convention  to  embody 
all  the  details  of  such  an  organization  in  the  constitution  itself.  The 
judicial  organization  prescribed  by  the  constitution  of  1848  was  prob- 
ably a satisfactory  one  in  the  year  when  it  was  adopted,  but  that  sys- 
tem was  not  capable  of  statutory  expansion,  and  soon  became  highly 
unsatisfactory,  for  the  constitution  was  substantially  impossible  to 
change  and  the  state  was  rapidly  increasing  in  population.  To  some 
extent  the  same  statement  may  be  made  regarding  the  judicial  organi- 
zation in  the  constitution  of  1870. 

This  bulletin  seeks  to  review  two  types  of  proposals  for  consti- 
tutional change:  (1)  Proposals  which  contemplate  a substantially 

complete  reorganization  of  the  judicial  system,  such  as  those  for  a 
unified  court  system,  with  but  one  series  of  trial  courts.  (2)  Those 
which  assume  that  the  system  will  remain  substantially  as  at  present, 
but  contemplate  changes  to  meet  specific  defects  now  thought  to 
exist  in  the  system.  Proposals  of  this  character  relate  to  such  matters 
as  the  constitution  of  the  appellate  courts,  and  to  jurisdiction  in  testa- 
mentary trusts. 

Acknowledgment  is  made  to  the  Supreme  Court  for  its  courtesy 
in  preparing  the  tables  which  appear  on  Appendix  No.  3 and  per- 
mitting their  use  in  this  bulletin. 


727 


II.  DEVELOPMENT  OF  THE  JUDICIAL  ORGANIZATION 

OF  ILLINOIS. 


Since  the  adoption  of  the  first  constitution  in  1818  there  have  been 
many  changes  in  the  judicial  organization  in  the  state  of  Illinois.  As 
the  population  has  increased  new  courts  have  been  established,  and 
the  jurisdiction  of  existing  courts  has  been  increased  or  diminished. 
Changes  have  been  made  in  the  manner  of  selecting  judges  and  clerks 
and  in  their  tenure  of  office. 

Each  new  constitution  has  retained  much  of  the  former  judicial 
article,  merely  changing  the  parts  that  had  proved  objectionable  and 
adding  matter  to  meet  conditions  not  covered  by  the  former  consti- 
tution. In  some  instances  statutory  provisions  that  have  proved  suc- 
cessful have  been  incorporated  in  the  new  constitution,  and  usually 
the  existing  courts  have  been  retained.  This  method  of  changing  the 
judicial  article  has  caused  each  constitution  to  contain  more  detail 
than  the  preceding  one. 


The  constitution  of  1818.  Article  IV  of  the  constitution  of 
1818  provided  for  the  establishment  of  the  courts.  The  judicial  power 
was  vested  “in  one  supreme  court,  and  such  inferior  courts  as  the 
general  assembly  shall  from  time  to  time  ordain  and  establish.” 1 
The  Supreme  Court  was  to  consist  of  a chief  justice  and  three  asso- 
ciate justices,  with  power  given  to  the  general  assembly  to  increase 
the  number  of  justices  after  the  year  1824.  The  supreme  court  was 
to  sit  only  at  the  seat  of  government,  but  each  justice  was  also  re- 
quired to  sit  as  a circuit  court  judge  until  1824,  but  not  thereafter 
unless  required  by  law.  The  supreme  court  was  given  appellate 
jurisdiction  only,  except  in  cases  relating  to  the  revenue,  in  cases  of 
mandamus  and  such  cases  of  impeachment  as  might  be  tried  before 
it.  All  judges  were  to  be  appointed  by  joint  ballot  of  both  branches 
of  the  general  assembly  and  were  to  hold  their  offices  during  good 
behavior.  Judges  could  be  removed  for  any  reasonable  cause  not 
sufficient  for  impeachment  on  address  of  two-thirds  of  each  branch  of 
the  general  assembly.  After  1824  the  general  assembly  was  authorized 
to  fix  the  salaries  of  judges,  but  such  salaries  could  not  be  diminished 
during  their  continuance  in  office.  All  clerks  were  appointed  by  the 
judges. 

The  first  session  of  the  general  assembly  convened  at  Kaskaskia 
October  5,  1818.  At  the  second  session  which  convened  in  January, 


1 Constitution  of  1818,  Article  IV,  Sec.  1. 


728 


1819,  the  general  assembly,  acting  under  the  power  conferred  by  the 
constitution  to  create  inferior  courts,  established  the  county  commis- 
sioners’ court.  This  court  was  composed  of  three  county  commis- 
sioners. The  powers  conferred  upon  it  were  chiefly  ministerial.  The 
act  creating  the  court  of  county  commissioners  gave  it  jurisdiction 
throughout  the  county  “in  all  matters  and  things  concerning  the  county 
revenue,  and  regulating  and  imposing  the  county  tax ; 
power  to  grant  licenses  for  ferries  and  taverns ; and  all  other  licenses 
and  things  that  may  bring  in  a county  revenue;  . . . jurisdic- 

tion in  all  cases  of  public  roads,  canals,  turnpike  roads  and  toll  bridges, 
where  the  law  does  not  prohibit  the  said  jurisdiction  of  said  courts; 
and  . . . power  and  jurisdiction  to  issue  all  kinds  of  writs, 

warrants,  process  and  proceedings,  by  the  clerk  throughout  the  state, 
to  the  necessary  execution  of  the  power  and  jurisdiction  with  which 
this  court  is  or  may  be  vested  by  law.”2  It  was  also  provided  that 
the  act  should  not  be  construed  to  give  the  court  jurisdiction  in  any 
civil  or  criminal  suit  other  than  cases  where  the  matter  or  thing 
brought  before  the  court  related  to  the  public  concerns  of  the  county 
generally.3  It  was  given  charge  of  all  county  business4  and  was  also 
given  authority  to  take  proofs  of  wills,  grant  letters  testamentary  and 
of  administration,  to  sell  real  estate  to  pay  debts  of  intestates,  to 
appoint  guardians  for  minors,  and  to  transact  generally  the  work  of 
a probate  court.5  When  the  probate  courts  were  established  in  1821 
the  county  commissioners’  court  was  deprived  of  all  probate  juris- 
diction. 

The  circuit  courts  were  also  established  at  the  second  session  of 
the  general  assembly  in  1819.  As  the  constitution  provided  that  until 
1824  each  justice  of  the  supreme  court  in  addition  to  his  duties  in  the 
supreme  court  should  also  sit  as  a circuit  judge,  no  judges  were  ap- 
pointed for  this  court.  The  act  creating  circuit  courts  required  that 
they  should  be  held  at  least  twice  a year  in  each  county,  and  pro- 
vided that  they  should  have  jurisdiction  “in  all  causes,  matters  and 
things  at  common  law  and  in  chancery  arising  in  each  of  the  counties 
in  their  respective  circuits  where  the  debt  or  demand  exceeds  the 
sum  of  twenty  dollars.”  6 

The  general  assembly  that  established  the  circuit  court  and  the 
county  commissioners’  court  also  carried  out  the  mandate  of  the  con- 
stitution to  appoint  justices  of  the  peace.  It  provided  that  justices  of 
the  peace  should  be  appointed  by  the  general  assembly,  and  that  they 
should  have  jurisdiction  of  debts  and  demands  that  did  not  exceed  one 
hundred  dollars.  Appeals  could  be  taken  from  the  justices  of  the 
peace  to  the  circuit  court  where  the  judgment  exceeded  the  sum  of 
four  dollars.7  In  1826  the  general  assembly  provided  that  justices 
of  the  peace  should  be  elected  by  the  voters  every  four  years.8 

In  1821  the  general  assembly  established  courts  of  probate  in 
each  county.  One  probate  judge  in  each  county  was  appointed  by  the 

2 Laws  of  1819,  pages  175-176. 

3 Laws  of  1819,  page  176. 

4 Laws  of  1819,  page  176. 

5 Laws  of  1819,  pages  223-233. 

8 Laws  of  1819,  page  380. 

7 Laws  of  1819,  page  185. 

8 Laws  of  1827,  page  255. 


729 


general  assembly.  These  judges  were  to  hold  office  during  good  be- 
havior. Probate  courts  were  given  exclusive  jurisdiction  in  matters 
relating  to  proofs  of  last  wills  and  testaments,  the  granting  of  letters 
testamentary,  the  settlement  of  all  estates  of  deceased  persons  and 
the  appointment  of  guardians  for  minors.  They  were  also  given 
power  to  hear  and  determine  applications  for  discharge  from  im- 
prisonment for  debt.  Appeals  were  taken  to  the  circuit  court.9 

In  1837  the  probate  court  act  was  amended  to  provide  that  in 
August,  1837,  and  in  August,  1839,  and  every  fourth  year  thereafter, 
an  additional  justice  of  the  peace  should  be  elected  in  each  county  to 
be  styled  the  probate  justice  of  the  peace.  These  probate  justices 
were  given  in  addition  to  the  jurisdiction  conferred  upon  justices  of 
the  peace,  the  jurisdiction  that  had  been  conferred  upon  probate 
judges.  They  were  to  hold  the  probate  court.10  The  office  of  pro- 
bate judge  was  abolished.  This  act  not  only  placed  the  election  of 
the  judge  of  a court  of  record  in  the  hands  of  the  people,  but  also 
provided  a term  of  four  years.  Before  this  time  all  judicial  officers, 
except  justices  of  the  peace,  had  been  appointed  by  the  general  assem- 
bly, during  good  behavior.  In  1845  the  term  of  probate  justices  was 
reduced  to  two  years.* 11 

In  1824  the  general  assembly  acting  upon  the  power  conferred 
by  the  constitution  provided  that  thereafter  judges  of  the  supreme 
court  should  not  hold  circuit  court.  It  divided  the  state  into  five 
circuits  and  provided  for  the  appointment  of  five  circuit  judges. 
This  change  did  not  meet  with  popular  approval.  It  was  criticised 
as  unwarrantable  extravagance.12  The  general  assembly  of  1826-27 
repealed  the  act  of  1824,  turned  the  newly  appointed  circuit  court 
judges  out  of  office,  and  required  that  each  judge  of  the  supreme 
court  should  sit  as  a circuit  judge.  This  act  divided  the  state  into 
four  circuits.  The  number  of  judges  of  the  supreme  court  was  not 
increased  until  1841.  In  that  year  the  general  assembly,  actuated  by 
political  motives,  passed  a bill  increasing  the  number  of  judges  of 
the  supreme  court  to  nine.  The  bill  was  vetoed  by  the  council  of  re- 
vision, which  consisted  of  the  governor  and  supreme  court  judges, 
but  was  passed  over  the  veto.13 

In  1829  the  general  assembly  passed  an  act  creating  a fifth  cir- 
cuit, which  act  provided  for  the  election  of  one  circuit  judge  by  the 
the  general  assembly.14  As  a result  of  this  act  there  were  five  circuits, 
four  of  them  presided  over  by  supreme  court  judges  and  one  by  a 
specially  elected  circuit  judge.  In  1835  a sixth  circuit  was  added,15 
in  1837  a seventh16  and  in  1839  an  eighth  and  ninth.17  Circuit  judges 
were  elected  for  each  additional  circuit  created.  In  1840  there  were, 
therefore,  nine  circuits,  presided  over  by  four  supreme  court  judges 
and  five  circuit  judges. 

w Laws  of  1820-21,  page  119ff. 

10  Laws  of  1836-37,  pages  176-177. 

11  Laws,  1844-45,  page  28. 

12  F.  B.  Crossley,  Courts  and  Lawyers  of  Illinois,  Vol.  1,  page  167. 

“Laws,  1840-41,  p.  173. 

11  Revised  Laws,  1833,  p.  147. 

15  Laws,  1834-35,  p.  153. 

16  Laws,  1836-37,  p.  113. 

17  Laws,  1838-39,  p.  155. 


730 


In  1841  the  general  assembly  passed  an  act  which  turned  out  of 
office  the  five  circuit  judges,18  increased  the  number  of  supreme  court 
judges  from  four  to  nine,  each  supreme  court  judge  performing  cir- 
cuit duties  in  one  of  the  nine  circuits. 

No  further  changes  were  made  in  the  organization  of  the  supreme 
or  circuit  courts  until  1848. 

Under  the  power  granted  to  the  general  assembly  to  establish 
inferior  courts  several  special  local  courts  for  counties  and  cities 
were  created. 

Acts  incorporating  the  cities  of  Chicago  and  Alton  were  passed 
in  1837.  Both  of  these  acts  made  provision  for  the  establishment  in 
each  city  of  a municipal  court  with  jurisdiction  concurrent  with  that 
of  the  circuit  court.19 

Special  local  courts  were  established  in  Cook  County  and  in  Jo 
Daviess  County  in  1845. 20  They  were  called  respectively  the  county 
court  of  Cook  County  and  the  county  court  of  Jo  Daviess  County. 
Each  of  these  courts  had  concurrent  jurisdiction  with  the  circuit 
court.  These  two  courts  were  presided  over  by  a single  judge. 


The  constitution  of  1848.  The  constitution  of  1818  was  a very 
flexible  instrument.  The  judicial  article  contained  only  eight  sections. 
It  defined  the  jurisdiction  and  organization  of  the  supreme  court,21 
but  gave  the  general  assembly  nearly  unlimited  power  to  establish 
inferior  courts  and  to  provide  for  their  jurisdiction  and  organization.22 
This  constitution  provided  that  all  judges  should  be  elected  by  joint 
ballot  of  both  houses  of  the  general  assembly  ;23  that  the  general 
assembly  after  1824  could  increase  the  number  of  supreme  court 
justices;24  that  the  judges  of  the  supreme  court  and  the  inferior  courts 
should  hold  their  office  during  good  behavior;25  and  that  the  supreme 
court  and  the  circuit  courts  should  appoint  their  own  clerks.26  Su- 
preme court  judges  could  be  removed  by  impeachment  or  upon  address 
of  the  legislature. 

In  1848  there  were  in  existence  justice  of  the  peace  courts  having 
a limited  jurisdiction  where  the  debt  or  demand  did  not  exceed  $100 ; 
probate  courts  in  each  county  presided  over  by  a probate  justice  of 
the  peace,  and  having,  in  addition  to  the  usual  jurisdiction  of  justices 
of  the  peace,  jurisdiction  of  probate  matters ; the  county  commissioners' 
court  composed  of  three  county  commissioners,  and  having  juris- 
diction of  county  matters;  the  circuit  courts  each  held  by  a justice  of 
the  supreme  court,  and  having  original  jurisdiction  in  all  cases  at  law 
and  equity  when  the  debt  or  demand  exceeded  $20.00,  and  in  all 
criminal  cases,  and  appellate  jurisdiction  in  all  appeals  from  inferior 


18  Laws,  1840-41,  p.  173. 

19  Laws  of  1836-37.  p.  75;  Laws  of  1837.  special  session,  p.  25. 
2°'Revised  Statutes.  1845,  Appendices  X-XI. 

21  Constitution  of  1818,  Art.  IV,  Sec.  2. 

23  Constitution  of  1818,  Art.  IV.  Sec.  1. 

23  Constitution  of  1818,  Art.  IV,  Sec.  4. 

24  Constituion  of  1818,  Art.  IV,  Sec.  3. 

25  Constitution  of  1818,  Art.  I V.  Sec.  4. 

60  Constitution  of  1818,  Art.  IV,  Sec.  6. 


731 


courts;  the  supreme  court  consisting  of  nine  judges,  having  appellate 
jurisdiction  only,  except  in  cases  relating  to  the  revenue,  and  in  cases 
of  mandamus  and  inapeachment.  Justices  of  the  peace  and  probate 
justices  of  the  peace  were  elected  by  the  voters.  All  other  judges 
were  appointed  by  the  general  assembly. 

The  power  to  increase  the  number  of  judges  of  the  supreme  court 
had  been  used  for  political  purposes  in  1841.  The  state  was  heavily  in 
debt  due  to  its  unfortunate  banking  experiences  and  internal  improve- 
ment schemes.  There  was  a distrust  of  the  general  assembly.  Previous 
to  1818  nearly  all  of  the  states  appointed  judges  for  life,  but  by  1848 
there  was  a general  tendency  toward  the  popular  election  of  judges  for 
short  terms.  All  of  these  conditions  were  reflected  in  the  constitution 
of  1848. 

The  constitution  of  1848  contained  much  more  detail  than  the 
constitution  of  1818.  There  were  two  reasons  for  this.  The  first  was 
the  desire  of  the  convention  to  curtail  the  power  of  the  general  as- 
sembly on  account  of  previous  abuses  of  such  power.  This  resulted  in 
the  insertion  into  the  constitution  of  provisions  which  prevented  the  gen- 
eral assembly  from  changing  the  organization  prescribed  by  the  consti- 
tution, and  made  the  constitution  of  1848  a very  rigid  instrument.  The 
other  reason  was  the  tendency  of  constitutional  conventions  to  adopt 
and  embody  in  the  constitutions  prepared  by  them  plans  or  schemes 
which  have  already  been  put  into  operation  and  proved  satisfactory. 
This  tendency  is  indicated  in  the  constitution  of  1848  in  the  provisions 
relating  to  the  inferior  courts.27  The  system  provided  by  the  general 
assembly  under  the  constitution  of  1818  worked  satisfactorily  and  the 
convention  of  1847  embodied  it  with  few  changes  into  the  constitution. 

The  supreme  court,  under  the  constitution  of  1848,  consisted  of 
three  judges,  who  were  elected  by  the  people  for  a term  of  nine  years. 
In  order  to  avoid  such  situations  as  arose  in  1841  the  general  assembly 
was  denied  power  to  increase  the  number  of  judges  of  this  court.  The 
jurisdiction  of  the  supreme  court  was  increased  by  giving  it  original 
jurisdiction  in  habeas  corpus.  The  constitution  of  1818  required  the 
supreme  court  to  be  held  at  the  seat  of  government.  The  constitution 
of  1848  divided  the  state  into  three  grand  judicial  divisions,  and  re- 
quired court  to  be  held  annually  in  each  division.  The  salary  of  judges 
of  the  supreme  court  was  fixed  at  $1,200  and  the  salary  of  circuit 
judges  at  $1,000.  The  general  assembly  was  without  authority  to  in- 
crease these  salaries.  The  power  to  appoint  clerks  was  taken  from  the 
courts  by  providing  that  clerks  of  the  supreme  and  circuit  courts  should 
be  elected. 

The  constitution  of  1848  fixed  the  number  of  circuits  at  nine,  the 
number  already  existing,  and  permitted  the  general  assembly  to  in- 
crease this  number.  It  provided  that  the  circuit  court  should  have 
jurisdiction  in  all  cases  at  law  and  equity  and  in  all  cases  of  appeals 
from  inferior  courts,  and  that  at  least  two  terms  of  court  should  be 
held  annually  in  each  county.  These  provisions  were  taken  over  from 
the  statutes.  One  circuit  judge  was  elected  in  each  circuit  for  a term 
of  six  years. 


27  Constitutional  Conventions  of  Illinois,  page  15. 


732 


County  courts  were  established  with  the  jurisdiction  which  had 
previously  been  conferred  upon  probate  courts.  The  general  assembly 
was  authorized  to  confer  other  jurisdiction  upon  this  court.  The 
county  judge,  sitting  with  such  justices  of  the  peace  as  might  be  pro- 
vided by  law,  was  required  to  hold  terms  for  the  transaction  of  county 
business,  but  power  was  vested  in  the  general  assembly  to  provide  for 
the  management  of  county  affairs  in  counties  which  should  adopt 
township  organization,  and  in  such  counties  the  management  of  the 
fiscal  concerns  of  the  county  by  the  county  court  was  to  be  dispensed 
with.28  Judges  of  the  county  courts  were  to  be  elected  for  a term  of 
four  years.  The  general  assembly  was  given  power  to  fix  the  salary 
of  these  judges. 

The  constitution  of  1848  provided  for  justices  of  the  peace  who 
were  to  be  elected  for  a term  of  four  years,  and  who  were  to  have  such 
jurisdiction  as  might  be  conferred  by  law. 

One  state’s  attorney  was  to  be  elected  in  each  circuit,  but  the  gen- 
eral assembly  was  given  power  to  provide  for  the  election  of  a county 
attorney  in  each  county  in  lieu  of  the  state’s  attorney  provided  for  in 
the  constitution. 

The  general  assembly  was  deprived  of  power  to  create  courts, 
except  city  courts.  City  courts  were  required  to  have  a uniform 
organization  and  jurisdiction. 

The  county  courts  of  Cook  County  and  JoDaviess  County,  which 
had  been  established  in  1845,  were  continued  by  the  schedule  to  the 
constitution. 

The  constitution  of  1848  provided  a more  rigid  court  system  by 
withdrawing  from  the  general  assembly  power  to  create  courts,  with 
the  exception  of  city  courts.  It  also  deprived  the  general  assembly  of 
power  to  fix  the  salaries  of  supreme  and  circuit  court  judges.  It 
changed  the  tenure  of  judges  from  good  behavior  to  a short  term ; took 
the  power  of  appointing  judges  from  the  general  assembly  by  making 
all  judges  elective  officers,  and  deprived  the  courts  of  power  to  appoint 
clerks  by  providing  that  clerks  of  court  should  be  elected  by  the  voters. 


Legislation  under  the  constitution  of  1848.  As  the  power  of 
the  general  assembly  over  the  courts  was  restricted  by  the  constitution 
of  1848,  the  legislation  pertaining  to  the  judicial  organization  was  not 
so  extensive  during  the  period  following  1848  as  it  had  been  prior  to 
that  time. 

The  establishment  and  organization  of  the  county  court  was  com- 
pleted in  1849.  This  court  was  given  the  jurisdiction  of  the  old  pro- 
bate courts  and  concurrent  jurisdiction  with  the  circuit  court  in  appli- 
cations for  the  sale  of  real  estate  to  pay  debts.  Judges  of  the  county 
court  were  made  conservators  of  the  peace  and  were,  in  addition,  to 
have  the  jurisdiction  of  justices  of  the  peace.  Two  justices  of  the 
peace  were  to  be  elected  in  each  county  to  sit  with  the  county  judge 
for  the  transaction  of  county  business.29  Under  the  township  organi- 


28  Constitution  1848,  Art.  VII,  Sec.  6. 

28  Laws  of  1849  (1st  session)  pages  62-67. 


733 


zation  acts  of  1849  and  1851  the  county  business  was  transferred  from 
the  county  court  to  the  board  of  supervisors  in  counties  which  adopted 
township  organization.30 

Under  the  power  conferred  by  the  constitution  to  create  in- 
ferior courts  in  cities,  the  general  assembly  established  recorders’ 
courts,  courts  of  common  pleas  and  city  courts  in  various  cities. 
Recorders’  courts  were  established  in  Chicago  in  1853,  in  LaSalle 
and  Peru  in  1857,  and  in  Peoria  in  1861.  Courts  of  common  pleas 
were  established  in  Cairo  in  1855;  in  Aurora  and  Elgin  in  1857 
(these  two  courts  were  consolidated  in  1859)  ; and  in  Amboy,  Mat- 
toon  and  Sparta  in  1869.  The  city  court  of  Alton  was  established 
in  1859.  The  Peoria  recorder’s  court  was  abolished  in  1863.  In 
1855  an  act  was  passed  which  provided  that  all  inferior  courts  estab- 
lished in  cities  should  have  concurrent  jurisdiction  with  circuit 
courts  in  all  civil  and  criminal  matters  except  murder  and  treason.31 

In  1849  the  county  court  of  Cook  County,  which  had  been  es- 
tablished in  1845  and  which  was  continued  by  the  schedule  to  the 
constitution  of  1848  was  changed  to  the  Cook  County  court  of 
common  pleas.  In  1859  the  Cook  County  court  of  common  pleas 
was  changed  to  the  superior  court  of  Chicago,  and  provision  was 
made  for  the  election  of  three  judges. 


Proposed  constitution  of  1862.  During  the  period  from  1850 
to  1860  the  population  of  the  state  increased  from  850,000  to 
1,700,000.  This  increase  was  accompanied  by  a rapid  industrial  de- 
velopment. An  increased  amount  of  business  came  before  the  courts 
as  a result  of  the  growth  and  development  of  the  state.  The  supreme 
court,  consisting  of  three  judges,  could  not  be  expected  to  take  care 
of  the  added  amount  of  business.  The  general  assembly  could  not 
increase  the  number  of  supreme  court  judges.  The  salaries  of  the 
supreme  court  judges  and  of  the  circuit  court  judges  as  fixed  by  the 
constitution  of  1848  had  proved  inadequate.  The  general  assembly 
had  created  additional  circuits  which  were  not  needed,  and  had  created 
city  courts  for  political  purposes. 

To  remedy  these  faults  the  proposed  constitution  gave  the  general 
assembly  power  to  increase  the  number  of  supreme  court  judges  to 
five;  provided  that  the  salaries  of  the  judges  of  the  supreme  and  cir- 
cuit courts  should  be  prescribed  by  law ; restricted  the  power  of  the 
general  assembly  to  create  new  circuits  by  providing  that  circuits 
could  be  increased  or  diminished  only  at  the  session  of  the  general 
assembly  six  years  after  the  adoption  of  the  constitution  and  every 
six  years  thereafter,  and  that  the  increase  or  diminution  should  not 
be  more  than  one  circuit  at  any  session ; deprived  the  general  assembly 
of  power  to  create  city  courts  by  placing  the  judicial  power  in  a su- 
preme court,  circuit  courts,  county  courts  and  justices  of  the  peace. 

The  courts  that  were  provided  for  by  the  constitution  of  1848, 
except  city  courts,  were  continued  by  the  proposed  constitution  of 


39  People  v Brown,  11  111.  478  (1850). 
31  Laws  of  1855,  page  147. 


734 


1862.  In  addition  to  these  courts  probate  judges  were  to  be  elected 
in  counties  having  a population  exceeding  one  hundred  thousand. 
Nearly  all  of  the  provisions  of  the  judicial  article  of  the  constitution  of 
1848  were  carried  forward  and  some  statutory  provisions  were  em- 
bodied in  the  proposed  constitution,  which  was  rejected  by  the  people. 


The  constitution  of  1870.  The  constitutional  convention  of 
1869-70  in  framing  the  judicial  article  found  the  problems  that  had 
existed  in  1862.  The  business  and  population  of  the  state  had  con- 
tinued to  increase  and  likewise  the  amount  of  litigation  to  be  disposed 
of  by  the  courts.  A supreme  court  consisting  of  three  members  was 
inadequate  to  handle  the  business  that  came  before  it.  The  constitu- 
tion of  1848  had  fixed  the  salary  of  judges  of  the  supreme  court  at 
$1,200,  and  the  salary  of  the  circuit  court  judges  at  $1,000,  without 
giving  the  general  assembly  power  to  increase  these  salaries.  These 
salaries  had  proved  inadequate.  The  general  assembly  had  attempted 
to  relieve  this  situation  by  authorizing  the  justices  of  the  supreme 
court  to  report  amendments  to  the  laws  to  the  general  assembly.  Each 
justice  was  authorized  to  employ  a clerk  to  aid  him  in  so  reporting 
amendments,  and  for  this  service  and  for  clerk  hire  each  justice  was 
allowed  $1,600  per  year.32  Each  circuit  judge  received  $1,000  per 
year  for  reporting  imperfections  of  the  laws  to  the  supreme  court,33 
and  a fee  of  $1.00  for  each  suit  filed.34  The  general  assembly  under  the 
constitution  of  1848  could  increase  the  number  of  circuits  at  will. 
The  number  of  circuits  had  been  increased  from  nine,  the 
number  established  by  the  constitution  of  1848,  to  twenty- 
nine.  Twenty-nine  circuits  were  far  more  than  were  neces- 
sary.35 The  general  assembly  had  continued  to  create  city  courts. 
It  was  contended  that  many  of  these  were  established  for  the  purpose 
of  providing  positions  for  politicians.36  As  the  laws  regarding  courts 
were  not  required  to  be  uniform,  many  acts  had  been  passed  provid- 
ing special  jurisdiction  for  particular  county  courts.  The  city  of 
Chicago  and  Cook  County  had  increased  more  rapidly  in  population 
than  the  other  parts  of  the  state,  and  a judicial  system  that  was  suit- 
able for  the  down-state  counties  was  inadequate  for  Cook  County. 
In  some  other  larger  counties  additional  courts  were  needed. 

In  framing  the  new  judicial  article  the  convention  of  1869-70  fol- 
lowed the  plan  that  had  been  adopted  by  former  conventions.  It  en- 
deavored to  correct  the  unsatisfactory  provisions  by  adding  detail 
without  attempting  to  discard  anything  that  had  proved  desirable. 
Certain  statutory  provisions  that  were  thought  to  be  successful  were 
adopted  and  embodied  in  the  new  constitution. 


33  Laws  of  1865,  page  127. 

33  Laws,  1869,  page  49.  Debates  & Proceedings  of  the  Constitutional  Con- 
vention of  1870,  page  1,043. 

34  Laws  of  Illinois,  1863,  p.  49. 

35  Debates  and  Proceedings  of  the  Constitutional  Convention  of  1870,  page 
1,043. 

30  Debates  and  Proceedings  of  the  Constitutional  Conv<  ntion  of  1870,  page 

975. 


735 


The  constitution  of  1870  attempted  to  remedy  the  faults  of  the 
existing  judicial  system  by  (1)  increasing  the  number  of  judges  of  the 
supreme  court  from  three  to  seven,  and  providing  that  after  the  year 
1874  inferior  appellate  courts  could  be  created,  (2)  authorizing  the 
general  assembly  to  fix  the  salaries  of  judges  of  the  supreme  and  cir- 
cuit courts,  and  prohibiting  these  judges  from  receiving  other  benefits 
or  performing  other  judicial  duties  which  carried  emoluments, 
(3)  limiting  the  circuits  to  one  for  every  one  hundred  thousand  in- 
habitants, and  prohibiting  changes  in  these  circuits,  except  at  the  legis- 
lative session  next  preceding  the  election  of  circuit  judges  therein  (the 
general  assembly,  however,  was  permitted  to  divide  the  state  into 
judicial  circuits  of  greater  population  and  territory  and  provide  for  the 
election  therein  of  not  exceeding  four  judges),  (4)  requiring  that  all 
laws  relating  to  courts  should  be  general  and  of  uniform  operation  and 
that  the  organization,  jurisdiction,  powers,  proceedings  and  practice  of 
courts  of  the  same  class  or  grade  should  be  uniform,  (5)  organizing  in 
detail  the  judicial  system  of  Cook  County,  making  this  county  a 
judicial  circuit,  and  providing  that  one  judge  could  be  added  to  either 
the  circuit  or  superior  court  of  Cook  County  for  each  additional 
50,000  inhabitants  that  the  county  contained  over  400,000,  (6)  per- 
mitting the  general  assembly  to  establish  probate  courts  in  counties 
having  a population  of  over  50,000. 

Several  other  changes  were  made  by  the  constitution  of  1870. 
The  age  at  which  a person  was  eligible  to  become  a judge  of  the  su- 
preme court  was  decreased  from  35  years  to  30  years,  and  the  corre- 
sponding age  of  circuit  judges  from  30  to  25.  For  the  election  of 
supreme  court  judges  the  state  was  divided  into  seven  districts,  and 
the  general  assembly  was  permitted  to  change  these  districts  only  “at 
the  session  of  the  general  assembly  next  preceding  the  election  of  judges 
therein’’,  and  then  only  on  the  rule  of  equality  of  population.  These 
districts  were  required  to  be  formed  from  contiguous  counties.  One 
or  more  terms  of  the  supreme  court  for  the  northern  division  were  to 
be  held  in  the  city  of  Chicago  whenever  the  city  of  Chicago  or  Cook 
County  provided  a suitable  library,  and  the  general  assembly  was  per- 
mitted to  alter,  increase  or  diminish  the  judicial  divisions.  The  vote  of 
the  general  assembly  necessary  to  remove  a judge  was  increased  from 
a two-thirds  vote  of  all  members  elected  to  both  houses  to  a concur- 
rence of  three-fourths  of  all  members  elected. 

Two  existing  statutory  provisions  were  embodied  in  the  judicial 
article  of  the  constitution  of  1870.  The  first  was  that  the  supreme 
court  should  appoint  a reporter  of  its  decisions ; the  other  provision 
was  that  the  judges  of  inferior  courts  should  report  defects  and  omis- 
sions in  the  laws  to  the  supreme  court,  and  that  the  judges  of  the  su- 
preme court  should  report  such  defects  and  omissions  in  the  constitu- 
tion and  laws  as  they  might  find  to  the  governor. 


Legislation  under  the  constitution  of  1870.  As  a whole  the 
constitution  of  1870  provides  a more  flexible  judicial  system  than  was 


736 


afforded  by  the  preceding  constitution.  Consequently  more  important 
legislation  has  been  enacted  since  1870  than  during  the  period  from 
1848  to  1870. 

Supreme  court.  Acting  under  the  authority  conferred  upon  it  by 
the  constitution  to  alter,  increase  or  diminish  the  grand  judicial  divi- 
sions, the  general  assembly  in  1897  passed  an  act37  providing  that  for 
the  purpose  of  holding  terms  of  the  supreme  court  and  for  the  election 
of  the  clerk  of  this  court,  the  state  shall  constitute  one  grand  judicial 
division.  This  act  also  provides  that  the  terms  of  the  supreme  court 
shall  be  held  at  Springfield  only. 

Under  its  constitutional  authority  to  change  the  boundaries  of  the 
districts  for  the  election  of  supreme  court  judges,  the  general  assembly 
in  1903  passed  an  act  designed  to  change  the  boundaries  of  the  fourth 
district.38  By  this  act  Rock  Island  County  was  transferred  from  the 
sixth  to  the  fourth  district,  Mercer,  Warren  and  Henderson  counties 
from  the  fifth  to  the  fourth  district,  and  Pike  and  Scott  counties  from 
the  fourth  to  the  second  district.  Notwithstanding  the  fact  that  there 
would  be  no  election  of  judges  in  the  second,  fifth  and  sixth  districts, 
the  districts  incidentally  changed  by  this  act,  until  after  the  next  ses- 
sion of  the  general  assembly,39  the  act  was  declared  valid.40  No  other 
changes  have  been  made  in  boundaries  of  the  supreme  court  election 
districts,  although  the  seventh  district  now  contains  nearly  one-half  of 
the  population  of  the  state. 

The  most  important  enactment  with  respect  to  the  supreme  court 
is  the  so-called  certiorari  act  of  1909  (amendment  to  section  121  of 
the  Practice  Act),  which  makes  the  decisions  of  the  appellate  courts 
final  in  a large  number  of  cases. 

Appellate  courts.  Acting  under  the  power  conferred  upon  it  to 
create  inferior  appellate  courts,  the  general  assembly  in  1877  estab- 
lished the  appellate  court.41  By  this  act  the  state  is  divided  into  four 
districts.  Cook  County  constitutes  the  first  district,  the  remainder  of 
the  northern  grand  division  of  the  supreme  court  the  second,  and  the 
other  two  grand  divisions  of  the  supreme  court  the  third  and  fourth 
districts  respectively.  Each  court  is  held  by  three  of  the  judges  of  the 
circuit  court  who  are  assigned  to  this  duty  by  the  supreme  court  for  a 
term  of  three  years.  These  courts  have  appellate  jurisdiction  only, 
and  by  the  so-called  certiorari  act  of  1909  their  decisions  are  final  in  a 
large  number  of  cases. 

In  order  to  relieve  the  congested  condition  of  the  docket  of  the 
appellate  court  in  Cook  County,  the  general  assembly  passed  an  act  in 
1897  providing  for  branch  appellate  courts  in  any  district  where  the 
number  of  pending  cases  exceeded  250  at  any  term.42  The  appellate 

37  Hurd’s  'Revised  Statutes,  Chap.  37,  Sec.  2-4. 

38  Hurd’s  Revised  Statutes,  Chap.  37,  Secs.  la-c. 

39  Section  5 of  Article  VI  of  the  constitution  reads:  “The  boundaries  of 
the  districts  may  be  changed  at  the  session  of  the  general  assembly  next  pre- 
ceding the  election  of  judges  therein,  and  at  no  other  time;  but  whenever  such 
alterations  shall  be  made  the  same  shall  be  upon  the  rule  of  equality  of  popu- 
lation, as  nearly  as  the  county  boundaries  will  allow,  and  the  districts  shall 
be  composed  of  contiguous  counties,  in  as  nearly  compact  form  as  circum- 
stances will  permit”. 

40  People  v Rose,  203  111.  46  (1903). 

41  Hurd’s  Revised  Statutes,  Chap.  37,  Secs.  18-35. 

4:1  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  35b. 


737 


court  act  was  again  amended  in  1911  tc  authorize  the  employment  of 
assistant  judges.43  The  operation  of  the  amendment  was,  however, 
limited  to  a two-year  period,  and  no  action  was  taken  under  it. 

Circuit  courts  and  the  superior  court  of  Cook  County.  Acting 
under  the  constitutional  authority  to  create  larger  circuits  than  those 
prescribed  in  section  13  of  the  judicial  article  of  the  constitution,  the 
general  assembly  in  1877  passed  an  act  which  divided  the  state  outside 
of  Cook  County  into  thirteen  circuits.  This  act  also  provided  for  the 
election  of  three  judges  in  each  circuit.44  One  of  the  reasons  for 
granting  the  general  assembly  this  power  was  to  permit  judges  in 
these  circuits  to  interchange  so  each  could  hear  the  class  of  cases  for 
which  he  was  best  qualified.45  Each  circuit  judge  holds  court  in  such 
counties,  as  may  be  agreed  upon  by  the  judges  of  that  circuit.  In  case 
of  disagreement  the  supreme  court  assigns  counties  to  the  judges.  The 
circuits  were  increased  to  seventeen  in  1897.46 

In  1909  an  act  was  passed  which  provides  that  the  supreme  court 
or  any  judge  thereof  in  vacation  may  upon  request  assign  judges  to 
assist  in  other  circuits  than  the  one  in  which  they  are  elected.47 

The  number  of  judges  of  the  circuit  and  superior  courts  of  Cook 
County  has  been  increased  until  each  of  these  courts  now  has  twenty 
judges. 

Prohate  courts.  In  1877  the  general  assembly  acting  under  the 
power  conferred  upon  it  by  the  constitution  established  probate  courts 
in  all  counties  having  a population  of  100,000  or  more.  In  1881  this 
act  was  amended  so  as  to  extend  its  provisions  to  all  counties  in  the 
state  having  a population  of  70,000  or  over.48 

City  courts.  The  general  assembly  under  the  constitution  of  1848 
had  unlimited  power  to  create  city  courts.  As  they  had  created  un- 
necessary courts  in  small  cities,  certain  members  of  the  constitutional 
convention  of  1869-70  endeavored  to  limit  the  power  of  the  general 
assembly  by  prescribing  that  city  courts  could  be  established  only  in 
cities  having  a population  of  over  5,000.  Friends  of  the  city  courts 
prevented  this  limitation.  The  constitution  did  provide,  however,  that 
laws  relating  to  courts  must  be  general. 

In  1874  an  act  was  passed  which  provided  that  city  courts  might 
be  established  in  any  city  containing  a population  of  over  5,000,  when- 
ever the  city  or  common  council  should  adopt  a resolution  to  submit  the 
question  to  the  qualified  voters  of  such  city  and  two-thirds  of  the 
votes  cast  should  be  in  favor  of  the  establishment  of  such  court.49  The 
act  of  1874  was  repealed  by  an  act  in  1901.  The  act  of  1901  provides 
that  city  courts  may  be  established  in  cities  having  a population  of 
3,000  or  more.50 

The  municipal  court  of  Chicago.  The  constitution  of  1870  had 
provided  that  justices  of  the  peace  in  the  city  of  Chicago  should  be 

43  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  359. 

44  Jones  & Addington  Illinois  Statutes  Annotated.  Chap.  37,  Sec.  3065. 

45  Debates  and  Proceedings  of  the  constitutional  convention  of  1870,  page 

1140. 

46  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  73. 

47  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  82i. 

48  Hurd’s  Revised  Statutes,  Chap.  37,  Secs.  216-239. 

49  Hurd’s  R.  S.  1874,  Ch.  37,  Sec.  211. 

60  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  260. 


738 


appointed  by  the  governor  “by  and  with  the  advice  and  consent  of  the 
senate  (but  only  upon  the  recommendation  of  a majority  of  the  judges 
of  the  circuit,  superior  and  county  court)”.  Regardless  of  this  pre- 
caution, some  unscrupulous  persons  succeeded  in  getting  appointed 
justices  of  the  peace.  The  practice  prevailed  of  starting  suits  before 
justices  of  the  peace  who  resided  in  the  most  distant  and  inaccessible 
part  of  the  county  from  the  defendant.  It  was  often  more  expensive 
to  defend  a suit  than  to  pay  the  demand.  Ungrounded  suits  were  fre- 
quent. In  1881  an  act  was  passed  which  was  expected  to  remedy  some 
of  the  evils  of  the  justice  of  the  peace  system  in  Cook’  County.  This 
act51  provided  that  each  county  of  the  state  should  constitute  a justice’s 
district,  except  Cook  County,  which  was  divided  into  two  districts,  the 
City  of  Chicago  constituting  one  district  and  the  territory  outside  of 
the  city  and  within  the  county  the  other  district,  and  to  the  limits  of 
such  districts  the  jurisdiction  of  all  justices  of  the  peace  therein  was 
expressly  limited.  This  act  was  declared  unconstitutional52  on  the 
ground  that  it  conflicted  with  the  constitutional  provision  that  the  juris- 
diction of  justices  of  the  peace  shall  be  uniform.53  The  evils  of  the 
justice  of  the  peace  system  in  Chicago  and  Cook  County  finally  became 
unbearable. 

In  1904  the  constitution  was  amended  by  adopting  Section  34  of 
Article  IV.  This  section  provides  among  other  things  that  in  event 
that  municipal  courts  are  established  in  Chicago  the  general  assembly 
shall  have  power  to  prescribe  the  practice  for  these  courts,  to  abolish 
the  justices  of  the  peace  in  Chicago,  and  to  limit  the  jurisdiction  of  the 
justices  of  the  peace  of  Cook  County  outside  of  Chicago  to  that  terri- 
tory. 

The  general  assembly  acting  under  the  authority  given  it  by  Sec- 
tion 34  of  Article  IV  of  the  constitution  passed  the  Chicago  municipal 
court  act  in  1905. 54  This  act  establishes  the  municipal  court  of  Chi- 
cago, prescribes  the  practice  to  be  followed  in  this  court,  abolishes  jus- 
tices of  the  peace  in  Chicago,  and  limits  the  jurisdiction  of  justices  of 
the  peace  of  Cook  County  outside  of  Chicago  to  that  territory. 


Summary.  The  judicial  article  in  the  constitution  of  1818  was 
brief  and  contained  mostly  matter  of  a fundamental  character.  Under 
this  constitution  the  general  assembly  had  nearly  unlimited  power.  It 
could  create  courts,  appoint  judges,  and  change  the  circuits.  This  con- 
stitution provided  that  judges  should  hold  their  office  during  good  be- 
havior. At  the  time  of  its  adoption  the  people  seemed  to  distrust  the 
executive  and  judicial  departments. 

Between  1818  and  1848  the  general  assembly  plunged  the  state 
into  debt  by  creating  state  banks,  which  proved  a failure,  and  by  aiding 
internal  improvements.  The  general  assembly  used  its  power  to  re- 
organize the  supreme  court  for  political  purposes.  When  the  consti- 

51  Laws  of  1881,  page  103. 

63  People  v.  Meech,  101  111.  200  (1881). 

63  Constitution  of  1870,  Art.  VI,  Sec.  21. 

64  Hurd’s  Revised  Statutes,  Chap.  37,  Secs.  264-330. 


739 


tution  of  1848  was  adopted  the  people  distrusted  the  general  assembly 
and  its  power  was  greatly  curtailed.  The  demand  for  elective  officers 
caused  the  power  of  appointing  judges  to  be  taken  from  the  general 
assembly.  The  movement  for  financial  retrenchment  caused  the 
salaries  of  judges  to  be  fixed  at  a low  figure. 

The  judicial  system  provided  by  the  constitution  of  1848  proved 
to  be  inadequate  to  meet  the  needs  of  the  unforeseen  increase  in  popu- 
lation and  business.  The  salaries  fixed  by  the  constitution  proved  to  be 
inadequate.  The  general  assembly  had  been  deprived  of  its  power  to 
create  new  courts,  or  to  increase  the  number  of  judges  of  the  supreme 
court  or  to  increase  the  salaries  of  the  judges  of  the  supreme  and  cir- 
cuit courts.  A convention  was  called  in  1862  to  remedy  these  con- 
ditions, but  the  constitution  framed  by  it  was  rejected.  The  constitu- 
tion of  1870  relieved  the  situation  by  increasing  the  number  of  supreme 
court  judges,  and  by  permitting  the  general  assembly  to  create  appellate 
and  probate  courts  and  to  fix  the  salaries  of  judges. 

The  plan  of  each  convention  in  dealing  with  the  judicial  article 
has  been  to  retain  all  of  the  former  unobjectionable  provisions,  change 
the  objectionable  parts  to  meet  new  conditions,  and  to  add  new  pro- 
visions. Not  only  have  the  unobjectionable  provisions  of  the  former 
constitution  been  retained,  but  in  many  instances  statutory  provisions 
that  had  been  thought  to  be  successful  have  been  adopted  and  embodied 
in  the  new  constitution.  This  has  also  caused  each  new  constitution  to 
contain  more  matter  not  of  a fundamental  character. 

Each  constitution  has  contained  more  detail  and  has  been  longer 
than  the  preceding  one.  The  constitution  of  1818  was  a very  flexible 
instrument.  In  order  to  curtail  the  power  of  the  general  assembly  be- 
cause of  certain  abuses,  the  judicial  system  was  made  very  rigid  by 
adopting  much  detail  in  the  constitution  of  1848.  In  order  to  give  the 
needed  flexibility  to  the  judicial  system  more  detail  was  incorporated 
in  the  judicial  article  of  the  constitution  of  1870. 


740 


III.  STRUCTURE  OF  THE  PRESENT  JUDICIAL  ORGANI- 
ZATION OF  ILLINOIS. 


All  of  the  judicial  powers  in  the  State  of  Illinois  are  vested  in 
courts  established  or  authorized  by  the  constitution.  Section  1 of 
Article  VI  provides  that  “the  judicial  powers,  except  as  in  this  article 
is  otherwise  provided,  shall  be  vested  in  one  Supreme  Court,  Circuit 
Courts,  County  courts,  Justices  of  the  Peace,  Police  Magistrates,  and 
in  such  courts  as  may  be  created  by  law  in  and  for  cities  and  incor- 
porated towns.”  Sections  23,  24  and  25  provide  for  the  Superior 
Court  of  Cook  County ; Section  26  for  the  Criminal  Court  of  Cook 
County;  Section  11  authorizes  the  establishment  of  inferior  appellate 
courts,  and  section  20  the  establishment  of  probate  courts  in  counties 
having  a population  of  over  50,000. 

In  1904  the  constitution  was  amended  by  adopting  Section  34  of 
Article  IV.  This  amendment  made  possible  the  establishment  of  the 
Municipal  Court  of  Chicago. 

Section  26  of  Artice  IV  of  the  constitution  reads : “The  State  of 
Illinois  shall  never  be  made  defendant  in  any  court  of  law  or  equity”. 
For  the  purpose  of  passing  on  claims  against  the  state  there  has  been 
established  an  organization  which,  although  not  a court  in  the  proper 
sense,  is  called  the  Court  of  Claims. 

The  common  law  practice  as  changed  by  statute  is  used  in  Illinois. 
The  general  assembly  has  made  many  changes,  but  the  distinction  be- 
tween law  and  equity  is  retained. 


The  Supreme  Court. 

(a)  Organization.  The  Constitution  of  Illinois  provides  in  de- 
tail for  the  organization  of  the  supreme  court. 

Article  VI,  Section  2,  states  that  the  supreme  court  shall  consist 
of  seven  judges.  The  article  further  specifies  that  one  of  these  judges 
shall  be  chief  justice,  that  four  shall  constitute  a quorum,  and  that  the 
concurrence  of  four  shall  be  necessary  to  every  decision. 

The  constitution  prescribes  that  no  person  shall  be  eligible  to  be 
elected  judge  of  the  supreme  court  unless  he  is  at  least  30  years  of 
age ; a citizen  of  the  United  States ; a resident  of  the  state  for  5 years 
next  preceding  his  election,  and  a resident  of  the  district  for  which  he 
is  elected. 

As  organized  by  the  constitution,  the  State  of  Illinois  was  divided 
into  three  grand  judicial  divisions;  one  or  more  terms  for  the  northern 


741 


division  were  to  be  held  in  Chicago ; the  general  assembly  was  given 
the  power  to  change  the  judicial  divisions,  and  the  time  and  places  of 
holding  court.  Exercising  this  authority,  the  general  assembly  in  1897 
consolidated  the  grand  divisions,  provided  that  the  supreme  court 
should  be  held  at  Springfield,  and  that  the  terms  should  commence  on 
the  first  Tuesday  of  October,  December,  February,  April  and  June  of 
each  year. 

The  constitution  provides  that  the  judges  of  the  supreme  court 
shall  hold  their  office  for  a term  of  nine  years.  The  supreme  court  as 
it  existed  between  1848  and  1870  consisted  of  three  judges.  On  May 
13,  1870,  when  the  present  constitution  was  adopted  by  the  constitu- 
tional convention  one  of  the  three  judges  of  this  court  had  an  unex- 
pired term  of  three  years,  another  an  unexpired  term  of  six  years, 
while  the  term  of  the  third  expired  on  the  first  Monday  in  June,  1870.. 
Section  6 of  Article  VI  of  the  new  constitution  provided  for  the  elec- 
tion of  the  four  new  judges  on  July  2,  1870,  the  date  on  which  the 
question  of  the  ratification  of  the  new  constitution  was  submitted  to 
the  people.  Five  judges  were,  therefore,  elected  in  1870,  the  four  new 
judges  and  the  successor  to  the  judge  whose  term  expired  in  June, 
1870.  Accordingly,  five  judges  are  now  elected  at  the  one  time,  one 
judge  three  years  thereafter  and  one  judge  six  years  after  the  election 
of  the  five  judges. 

For  the  purpose  of  electing  judges  of  the  Supreme  Court,  the  con- 
stitution divides  the  state  into  seven  districts.  The  constitution  states : 
“The  boundaries  of  the  districts  may  be  changed  at  the  session  of  the 
General  Assembly  next  preceding  the  election  of  judges  therein,  and 
at  no  other  time ; but  whenever  such  alterations  shall  be  made  the  same 
shall  be  upon  the  rule  of  equality  of  population  as  nearly  as  county 
boundaries  will  allow,  and  the  districts  shall  be  composed  of  contiguous 
counties,  in  as  nearly  compact  form  as  circumstances  will  permit.  The 
alteration  of  the  districts  shall  not  affect  the  tenure  of  office  of  any 
judge.”1 

Some  question  has  arisen  as  to  the  meaning  of  the  constitutional 
provision  for  changing  the  boundaries  of  the  supreme  court  election 
districts.  One  possible  construction  of  this  provision  is  that  when  any 
change  is  made  all  districts  should  be  considered  and  involved  in  the 
change.2  Since  the  districts  can  be  changed  only  at  the  session  of  the 
general  assembly  preceding  the  election  of  judges  in  the  districts 
changed,  this  method  of  changing  the  boundaries  of  the  districts  ob- 
viously brings  complications.  To  follow  this  construction  literally 
would  preclude  any  change.  If  it  is  intended  that  the  districts  can  be 
changed  at  the  session  next  preceding  the  election  of  the  majority  of 
judges,  two  districts  can  not  be  changed,  as  that  session  of  the  general 
assembly  would  not  be  the  one  preceding  the  election  of  judges  in  those 
two  districts.  If  on  the  other  hand  any  district  can  be  changed,  the 
change  must  necessarily  affect  other  districts.  In  some  of  the  districts 
incidentally  changed  there  may  be  no  election  of  the  supreme  court 
judge  until  after  the  next  session  of  the  general  assembly.  The  su- 

1 Constitution  of  1870,  Article  VI,  Sec.  5. 

2 Judges  in  the  1st.  2nd,  3rd,  6th  and  7th  districts  were  elected  in  1870, 
the.  judge  in  the  5th  district  in  1873  and  in  the  4th  district  in  1876. 


742 


preme  court  has  construed  this  provision  of  the  constitution  to  give  the 
general  assembly  power  to  change  any  district  at  the  session  of  the 
general  assembly  next  preceding  the  election  of  the  supreme  court 
judge  in  that  district,  without  considering  or  changing  all  of  the  dis- 
tricts, and  regardless  of  the  fact  that  in  other  districts  incidentally 
changed  there  will  be  no  election  of  judges  until  after  the  next  session 
of  the  general  assembly.3 

The  constitution  provides  for  a reporter  of  decisions  of  the  su- 
preme court.  He  is  appointed  by  the  court  for  a term  of  four  years. 
Provision  is  also  made  in  the  constitution  for  the  election  of  a clerk  of 
the  supreme  court  for  each  of  the  three  grand  divisions.  Upon  the 
consolidation  of  the  grand  divisions  the  statutes  provided  that  there- 
after only  one  clerk  should  be  elected.4  The  term  of  office  of  the  clerk 
is  six  years.5  He  is  now  elected  by  a popular  vote  of  the  whole 
state.6 

(b)  Original  jurisdiction.  Section  2 of  Article  VI  of  the  con- 
stitution confers  upon  the  supreme  court  “original  jurisdiction  in  cases 
relating  to  revenue,  in  mandamus  and  habeas  corpus,  and  appellate 
jurisdiction  in  all  other  cases.” 

The  original  jurisdiction  of  the  supreme  court  is  limited  to  cases 
relating  to  the  revenue,  mandamus  and  habeas  corpus.  No  other  or- 
iginal jurisdiction  can  be  conferred  upon  it  by  the  general  assembly7 
and  it  can  exercise  no  other  original  jurisdiction.8  This  original  juris- 
diction of  the  supreme  court  is  concurrent  with  other  courts  of  original 
jurisdiction.9  The  supreme  court  is  not  required  to  exercise  its  original 
jurisdiction  in  all  cases  relating  to  the  revenue,  in  mandamus,  and 
habeas  corpus  that  the  parties  may  desire  to  bring  before  it.10  In  Peo- 
ple ex  rel.  Kocourek  v.  Chicago,  193  111.  507,  it  is  said  that  original 
jurisdiction  is  conferred  upon  the  supreme  court  in  mandamus  to  pro- 
tect the  rights,  interests  and  franchises  of  the  state,  and  the  rights  and 
interests  of  the  whole  people,  to  enforce  the  performance  of  high 
official  duties  affecting  the  public  at  large,  and  in  cases  of  emergency 
to  adjudicate  matters  affecting  local  public  interests,  or  private  rights, 
when  there  is  no  other  adequate  remedy,  and  the  exercise  of  such 
jurisdiction  is  necessary  to  prevent  a failure  of  justice,  and  that  the 
supreme  court  is  vested  with  the  discretion  to  decide  in  any  case 
whether  it  is  of  such  character  as  to  call  for  the  exercise  of  original 
jurisdiction. 

(c)  Appellate  jurisdiction.  Section  2 of  Article  VI  of  the  con- 
stitution confers  upon  the  supreme  court  “original  jurisdiction  in  cases 
relating  to  the  revenue,  in  mandamus  and  habeas  corpus,  and  appellate 
jurisdiction  in  all  other  cases”.  “In  all  other  cases”  does  not  mean 
that  the  supreme  court  has  jurisdiction  in  all  appeals,  or  that  its  appel- 
late jurisdiction  can  not  be  limited.11 

3 People  v.  Rose,  203  111.  46  (1903). 

4 Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  3a. 

5 Constitution  of  1870,  Art.  VI,  Sec.  10. 

0 Hurd’s  Revised  Statutes.  Chap.  37,  Sec.  2. 

7 Canby  v.  Hartzell,  167  111.  628  (1897). 

8 Courter  v.  Simpson  Const.  Co.,  264  111.  488  (1914). 

9 Hundley  & Rees  v.  Commissioners,  67  111.  559,  563  (1873). 

10  People  ex  rel.  Kocourek  v.  Chicago,  193  111.  507  (1901). 

11  Drainage  Commissioners  v.  Harms,  238  111.  414  (1909). 


743 


Section  2 of  Article  VI  must  be  construed  with  Section  11  of  the 
same  Article.  Section  11  provides  that  appeals  may  be  taken  from  the 
Appellate  Court  to  the  Supreme  Court  “in  all  criminal  cases  and 
cases  in  which  a franchise,  or  freehold,  or  the  validity  of  a statute  is 
involved.”  In  Young  v.  Stearns,  91  111.  221,  (1878),  the  court  says: 
“There  are  only  four  classes  of  cases  in  which  there  is  a constitu- 
tional right  of  appeal  or  writ  of  error  to  this  court.  These  four 
classes  are  criminal  cases  and  cases  in  which  either  a franchise,  a 
freehold  or  the  validity  of  a statute  is  involved.  Even  in  these  cases 
such  constitutional  right  of  appeal  or  writ  of  error  is  not  the  right 
of  a direct  appeal  from  or  writ  of  error  to  the  trial  court,  but  such 
appeal  or  writ  of  error  may  be  through  the  intermediary  of  the 
appellate  court.  • It  is  for  the  legislature  to  determine,  as  to 
whether  in  all  or  some,  or  any  of  these  cases  the  appeal  shall  be 
brought  to  this  court  or  otherwise.”  Therefore,  the  appellate  juris- 
diction of  the  Supreme  Court  could  be  limited  to  these  four  classes  of 
cases. 

The  Practice  Act12  directs  that  appeals  shall  be  taken  to  the  Su- 
preme Court  from  the  Circuit  courts,  the  Superior  Court  of  Cook 
County,  County  Courts  and  City  Courts  in  all  criminal  cases  above  the 
grade  of  misdemeanors ; in  cases  in  which  a franchise  or  a freehold, 
or  the  validity  of  a statute  or  the  construction  of  the  constitution  is 
involved ; in  cases  relating  to  the  revenue,  and  in  cases  in  which  the 
state  is  interested  as  a party  or  otherwise.  It  also  permits  cases  in 
which  the  validity  of  a municipal  ordinance  is  involved  to  be  taken  di- 
rectly to  the  Supreme  Court  from  the  trial  court,  if  the  trial  judge  cer- 
tifies that  in  his  opinion  the  public  interest  so  requires. 

Other  statutes  allow  appeals  to  be  taken  to  the  Supreme  Court 
from  the  Circuit  Court  in  bills  to  restrain  the  disbursement  of  public 
moneys,13  from  the  decrees  of  the  Circuit  Court  on  applications  to  reg- 
ister land,14  from  the  Circuit  or  County  Court  in  eminent  domain 
cases,15  from  the  orders  of  the  County  or  Circuit  Court  organizing 
drainage  districts,16  from  the  judgment  of  the  County  Court  assessing 
damages  and  benefits  for  constructing  draining  systems,17  from  the  final 
decrees  of  the  County  or  Circuit  Court  in  farm  drainage  matters,18 
from  the  County  Court  in  proceedings  for  sale  of  lands  for  taxes,  and 
special  assessments,19  from  the  Circuit  or  County  Court  in  election 
contests,20  from  the  County  Court  upon  refusal  of  application  to  put 
name  on  or  erase  from  election  register,21  from  the  Circuit  Court  in 
cases  arising  under  the  workmen’s  compensation  act,22  and  from  the 
Circuit  Court  of  Sangamon  County  in  reviews  of  the  decisions  of  the 
Public  Utilities  Commission.23 


13  Sec.  118,  Chap.  110,  Hurd’s  Revised  Statutes. 

13  Hurd’s  Revised  Statutes,  Chap.  102,  Sec.  21. 

14  Hurd’s  Revised  Statutes,  Chap.  80,  Sec.  69. 
in  Hurd’s  Revised  Statutes,  Chap.  47,  Sec.  12. 

16  Hurd’s  Revised  Statutes,  Chap.  42,  Sec.  16. 

17  Hurd’s  Revised  Statutes,  Chap.  42,  Sec.  17b. 

15  Hurd’s  'Revised  Statutes,  Chap.  37,  Sec.  82f. 

1V  Hurd’s  Revised  Statutes,  Chap.  120,  Sec.  192, 

20  Hurd’s  Revised  Statutes,  Chap.  46,  Sec.  123. 

21  Hurd’s  Revised  Statutes,  Chap.  46,  Sec.  2-08. 

23  Hurd’s  Revised  Statutes,  Chap.  48,  Sec.  144. 
23  Hurd’s  Revised  Statutes,  Chap.  111a,  Sec,  69. 


74.4: 


Appeals  from  the  Appellate  Court  to  the  Supreme  Court  are  also 
regulated  by  the  Practice  Act.  Section  121  of  that  Act  (as  amended 
in  1909  by  the  so-called  certiorari  act)  provides  that,  aside  from  cases 
in  which  appeals  and  writs  of  error  are  specifically  required  by  the  con- 
stitution to  be  allowed  from  the  Appellate  Courts  to  the  Supreme  Court, 
the  judgments  and  decrees  of  the  Appellate  Courts  shall  be  final,  sub- 
ject to  the  following  two  exceptions  only: 

(A)  “In  case  a majority  of  the  judges  of  the  Appellate  Court 
or  any  branch  thereof  shall  be  of  the  opinion  that  a case  (regardless  of 
the  amount  involved)  decided  by  them  involves  a question  of  such  im- 
portance either  on  account  of  principal  or  collateral  interests,  as  that  it 
should  be  passed  upon  by  the  Supreme  Court,  they  may  in  such  cases 
grant  appeals  to  the  Supreme  Court  on  petition  of  the  parties  to  the 
cause.” 

(B)  “It  shall  be  competent  for  the  Supreme  Court  to  require  by 
certiorari  or  otherwise  any  such  case  to  be  certified  to  the  Supreme 
Court  for  its  review  and  determination ; Provided,  however,  that  in 
actions  ex  contractu  (exclusive  of  actions  involving  a penalty)  and  in 
all  cases  sounding  in  damages,  the  judgment  exclusive  of  costs  shall  be 
more  that  $1,000.” 

Apparently  misdemeanors  are  the  only  cases  going  to  the  Appel- 
late Courts  in  which  there  is  a constitutional  right  of  appeal 
or  writ  of  error  to  the  supreme  court.  It  is  also  pro- 
vided that  in  those  cases  which  may  be  brought  from  the 
Appellate  Court  to  the  Supreme  Court,  the  Supreme  Court  can  re- 
examine as  to  questions  of  law  only.24  The  decision  of  the  Appellate 
Court  in  all  other  matters  is  made  final.  The  act  making  the  decision 
of  the  Appellate  Court  final  in  all  matters  except  those  above  men- 
tioned was  passed  in  1909. 23 


The  Appellate  Courts. 

Appellate  Courts  were  established  in  Illinois  in  1877  pursuant  to 
Section  11  of  Article  VI  of  the  constitution,  which  provides  that  after 
the  year  1874  inferior  Appellate  Courts  of  uniform  organization  and 
jurisdiction  may  be  created  in  districts  formed  for  that  purpose. 

(a)  Organisation.  By  the  act  creating  Appellate  Courts20  four 
districts  are  established.  These  districts  are  the  same  as  the  old  Grand 
Divisions  of  the  Supreme  Court,  except  that  Cook  County  was  made  a 
separate  district.  By  statute  branch  courts  may  be  established  when 
there  are  pending  and  undetermin^^  over  two  hundred  and  fifty  cases  at 
any  one  term,  and  the  justices  or  a majority  of  them  shall  request  the 
Supreme  Court  in  writing.27  The  terms  are  held  in  the  first  district  at 
Chicago  on  the  first  Tuesdays  of  March  and.  October  of  each  year,  in 
the  second  district  at  Ottawa  on  the  first  Tuesday  in  April  and  October 
of  each  year,  in  the  third  district  at  Springfield  on  the  first  Tuesday  of 

24  Hurd’s  Revised  Statutes,  Chap.  110,  Sec.  122. 

2r*  Hurd’s  Revised  Statutes,  Chap.  110,  Sec.  121. 

2,1  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  18. 

'"Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  3 5 j to  35m. 


April  and  OcioDer  of  each  year,  and  in  the  fourth  district  at  Mount 
Vernon  on  the  fourth  Tuesday  in  March  and  October  of  each  year.28 

The  constitution  provides  that  the  Appellate  Courts  shall  be  held 
by  such  number  of  circuit  court  judges  as  may  be  provided  by  law,  but 
that  no  judge  shall  sit  in  review  upon  cases  decided  by  himself.  Other 
details  of  organization  are  prescribed  by  statute.  Appellate  Courts  are 
held  by  three  judges.  These  judges  are  assigned  by  the  Supreme 
Court  for  a period  of  three  years.  They  choose  one  of  their  own  num- 
ber for  presiding  justice.  Appellate  Courts  are  courts  of  record.  All 
opinions  must  be  in  writing.29 

The  constitution  prohibits  the  judges  of  the  Appellate  Court  from 
receiving  additional  salary  for  their  services  in  the  Appellate  Court, 
but  by  statute  it  is  provided  that  judges  residing  in  counties  having  a 
population  of  less  than  150,000,  who  are  assigned  or  required  to  serve 
as  judges  in  an  Appellate  Court  sitting  in  a county  having  a population 
of  over  150,000,  may  be  allowed  out  of  the  treasury  of  the  county  where 
the  court  is-  sitting  a sum  not  to  exceed  fifteen  dollars  per  day  for 
their  expenses.30 

(b)  Jurisdiction.  The  part  of  Section  11  of  Article  VI  of  the 
Constitution  which  relates  to  the  jurisdiction  of  the  Appellate  Court 
reads  as  follows : “inferior  appellate  courts,  of  uniform  organization 

and  jurisdiction,  may  be  created  to  which  such  appeals  or  writs  of  error 
as  the  general  assembly  may  provide  may  be  prosecuted  from  the  cir- 
cuit and  other  courts,  and  from  which  appeals  and  writs  of  error  shall 
lie  to  the  Supreme  Court  in  all  criminal  cases,  and  cases  in  which  a 
franchise  or  freehold  or  the  validity  of  a statute  is  involved,  and  in 
such  other  cases  as  may  be  provided  by  law”. 

By  this  section  the  Appellate  Court  is  limited  to  appellate  juris- 
diction. The  legislature  can  not  clothe  it  with31  nor  can  it  exercise,32 
original  jurisdiction. 

The  only  constitutional  limitation  on  the  appellate  jurisdiction  is 
that  appeals  and  writs  of  error  shall  lie  to  the  Supreme  Court  in  the 
four  classes  of  cases  enumerated  in  the  section  above  quoted.  In  all 
other  cases  the  decisions  of  this  court  may  be  made  final. 

The  Appellate  Court  Act33  vests  in  the  appellate  court  jurisdiction 
in  all  matters  of  appeal  or  writs  of  error  from  the  final  judgments, 
orders  or  decrees  of  any  of  the  circuit  courts  and  the  Superior  Court 
of  Cook  County,  or  county  courts  or  city  courts  in  any  suit  or  proceed- 
ing at  law  or  in  chancery,  other  than  criminal  cases,  not  misdemeanors, 
and  cases  involving  a franchise  or  freehold  or  the  validity  of  a statute. 
The  Practice  Act34  further  limits  the  jurisdiction  of  this  court  by  pro- 
viding that  the  following  cases  shall  be  taken  directly  to  the  Supreme 
Court  from  the  Circuit  Court,  the  Superior  Court  of  Cook  County, 
County  Courts  and  City  Courts : 


^Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  19. 

29  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  18  to  35. 

80  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  35n. 

31  Hawkes  v.  People,  124  111.  560  (1888). 

33  People  ex  rel.  Lydston  v.  Hoyne,  262  111.  82  (1914). 
33  Hurd’s  Revised  Statutes,  Chap.  37.  Sec.  25. 

84  Hurd’s  Revised  Statutes,  Chap.  110,  Sec.  118. 


746 


(1)  All  criminal  cases  above  the  grade  of  misdemeanors; 

(2)  Cases  in  which  a franchise  or 

(3)  freehold,  or 

(4)  the  validity  of  a statute,  or 

(5)  the  construction  of  the  constitution  is  involved; 

(6)  Cases  in  which  the  validity  of  a municipal  ordinance  is 
involved  and  the  trial  judge  certifies  that  in  his  opinion 
the  public  interest  so  requires ; 

(7)  Cases  relating  to  revenue; 

(8)  Cases  in  which  the  state  is  interested  as  a party  or  other- 
wise. 

Other  statutes  provide  for  appeals  from  the  county  or  circuit  court 
direct  to  the  Supreme  Court  in  various  statutory  proceedings.35 

As  already  noted,  the  Supreme  Court  may  cause  any  contract  case 
or  case  sounding  in  damages,  where  the  judgment  is  over  $1,000  ex- 
clusive of  costs  and  any  case  involving  a penalty  which  has  been  de- 
cided by  the  Appellate  Court  to  be  certified  to  it  (the  Supreme  Court) 
for  review,  and  the  majority  of  the  judges  of  the  Appellate  Court  by 
giving  a certificate  of  importance  may  send  any  case  which  has  been 
decided  by  them  to  the  Supreme  Court  for  review.  In  all  other  cases, 
save  those  in  which  the  constitution  gives  a right  of  appeal  to  the 
Supreme  Court,  the  decision  of  the  Appellate  Court  is  final. 

The  judgment  of  the  Appellate  Court  is  final  as  to  all  matters  of 
fact  in  controversy,  in  any  final  determination  of  any  cause  or  pro- 
ceeding, except  in  chancery,  where  such  determination  is  the  result 
wholly  or  in  part  of  a finding  of  facts  different  from  the  findings  of 
the  trial  court.36 


Circuit  Courts. 

(a)  Organization.  The  constitution  vests  in  the  General  Assenfbly 
power  to  divide  the  state  into  judicial  circuits  and  to  provide  for  the 
election  in  each  circuit  of  not  to  exceed  four  judges.37  The  general 
assembly  has  exercised  this  power.  The  State,  exclusive  of  Cook 
County,  is  now  divided  into  seventeen  circuits.  Three  judges  are 
elected  for  each  circuit.38  The  constitution  requires  two  terms  of  court 
to  be  held  annually  in  each  county.39  It  vests  in  the  General  As- 
sembly the  power  to  fix  the  times  of  holding  court40  and  prohibits  that 
body  from  changing  the  terms  of  holding  court  except  at  the  session 
next  preceding  the  election  of  judges.  Extra  terms  may,  however,  be 
provided  for  at  any  session.41 

It  is  provided  by  the  constitution  that  judges  of  the  circuit  court 
shall  be  elected  by  popular  vote  for  a term  of  six  years ; that  no  person 
shall  be  eligible  to  the  office  of  judge  of  the  circuit  or  any  inferior 
court  unless  he  is  at  least  twenty-five  years  of  age,  a citizen  of  the 


35  See  p.  743. 

39  Hurd’s  Revised  Statutes,  Chap.  110,  Sec.  120. 

37  Constitution  1870,  Art.  VI,  Sec.  15. 

38  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  74. 

39  Constitution  1870,  Art.  VI,  Sec.  12. 

40  Constitution  1870,  Art.  VI,  Sec.  14. 

41  Constitution  1870,  Art.  VI,  Sec.  14. 


747 


United  States,  and  a resident  of  the  State  for  five  years  next  preceding 
his  election,  and  a resident  of  the  circuit,  county,  city  or  incorporated 
town  for  which  he  is  elected.42  The  statutes  provide  that  the  judges  of 
each  circuit  may  determine  the  manner  of  holding  court  in  their  circuit, 
but  in  case  of  disagreement  the  Chief  Justice  of  the  Supreme  Court 
shall  assign  them  to  such  counties  in  their  circuits  as  he  may  de- 
termine.43 Judges  are  prohibited  by  the  constitution  from  receiving 
any  other  compensation  than  their  salaries  for  the  discharge  of  their 
official  duties.  The  salary  of  judges  can  not  be  increased  or  diminished 
during  their  derms  of  office.44  The  general  assembly  fixes  such  sala- 
ries.45 The  judges  of  the  circuit  court,  outside  of  Cook  County,  elected 
prior  to  the  first  Monday  of  June,  1919,  receive  five  thousand  dollars 
per  year.46  Those  elected  after  the  first  Monday  of  June,  1919,  receive 
six  thousand  five  hundred  dollars  per  year.47 

(b)  Jurisdiction.  The  constitution  provides  that  the  Circuit 
Court  shall  have  original  jurisdiction  in  all  causes  in  law  and  equity, 
and  such  appellate  jurisdiction  as  may  be  provided  by  law. 

The  original  jurisdiction  of  Circuit  Courts  can  not  be  diminished 
or  taken  away  by  the  legislature.48  Concurrent  jurisdiction  may,  how- 
ever, be  conferred  upon  other  courts. 

The  circuit  courts  have  original  jurisdiction  in  cases  where  the 
general  assembly  creates  a new  statutory  remedy  for  the  recovery  of 
property  or  for  damages  occasioned  by  the  infringement  of  a right. 
They  have  no  jurisdiction,  however,  in  purely  statutory  proceedings 
which  are  not  causes  at  law  or  equity,  such  as  election  contests,  unless 
such  jurisdiction  is  conferred  by  statute.49 

By  statute  the  circuit  court  has  been  given  exclusive  original  juris- 
diction in  contests  of  the  election  of  judges  of  the  supreme  court,  clerk 
of  the  supreme  court,  judges  of  the  circuit  court,  judges  of  the  su- 
perior court  of  Cook  county,  judges  of  the  county  courts,  mayors  of 
cities,  presidents  of  county  boards,  presidents  of  villages,  in  reference 
to  the  removal  of  county  seats,  and  in  reference  to  any  other  subject 
that  may  be  submitted  to  the  vote  of  the  people  of  the  county.  They 
are  given  concurrent  jurisdiction  with  the  county  court  in  contests  for 
the  election  of  all  other  county,  township  and  precinct  officers.50 

It  has  also  been  given  jurisdiction  in  certain  proceedings  in  con- 
nection with  the  fish  and  game  laws,51  in  proceedings  organizing  farm 
drainage  districts,52  and  in  partition  proceedings.53 

The  circuit  court  is  also  given  jurisdiction  in  appeals  from  the 
disallowance  of  claims  by  the  County  Board.54  The  Circuit  Court  of 


42  Constitution  1870,  Art.  VI,  Sec.  17. 

43  Jones  and  Adding-ton,  Illinois  Statutes  Annotated,  Chap.  37,  Sec.  3067. 

44  Constitution  1870,  Art.  VI,  Sec.  16. 

45  Constitution  1870,  Art.  VI.  Sec.  16. 

40  Hurd’s  Revised  Statutes,  Chap.  53,  Sec.  3. 

47  Laws  1919,  p.  553. 

48  People  v.  Jacobson,  247  111.  394  (1910). 

49  Douglas  v.  Hutchinson,  183  111.  323  (1899). 

60  Hurd's  Revised  Statutes,  Chap.  46,  Secs.  96,  97,  98. 

61  Hurd’s  Revised  Statutes,  Chap.  56,  Sec.  47. 

62  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  82d. 

63  Hurd’s  Revised  Statutes,  Chap.  106,  Sec.  1. 

64  Hurd’s  Revised  Statutes,  Chap.  34,  Sec.  35. 


748 


Sangamon  County  is  given  jurisdiction  to  review  the  orders  of  the 
Public  Utilities  Commission.55 

The  Constitution  provides  that  the  circuit  courts  shall  have  such 
appellate  jurisdiction  as  may  be  provided  by  law.  Appellate  juris- 
diction has  been  conferred  by  the  general  assembly  upon  the  circuit 
court  in  all  appeals  from  (a)  justices  of  the  peace,56  except  judgments 
confessed;  (b)  in  appeals  from  the  probate  court  in  all  cases  except 
in  proceedings  for  the  sale  of  real  estate  to  pay  debts;57  and  (c)  in 
appeals  from  the  county  court  in  all  matters  relating  to  the  settlement 
of  the  estates  of  deceased  persons,  appointment  of  guardians  and  con- 
servators and  the  settlement  of  their  accounts,  and  in  matters  relating 
to  apprentices.58 

In  appeals  from  justices  of  the  peace,  and  from  probate  and 
county  courts  a trial  de  novo  is  had  in  the  circuit  court. 


Circuit,  superior  and  criminal  courts  of  Cook  County.  The 

constitution  makes  special  provisions  for  the  judicial  organization  of 
Cook  County.  The  county  constitutes  one  judicial  circuit.59  In  ad- 
dition to  the  circuit  court  there  is  in  this  county  the  superior  court  of 
Cook  County  and  the  criminal  court  of  Cook  county.  The  superior 
court  of  Cook  County  has  the  same  jurisdiction  as  the  circuit  court. 
The  criminal  court  has  jurisdiction  of  all  cases  of  a criminal  or  quasi 
criminal  nature  arising  in  the  county.60 

Judges  of  the  circuit  and  superior  courts  are  elected  for  a term  of 
six  years.61  No  judges  are  elected  for  the  criminal  court.'  Its  terms 
are  held  by  “one  or  more  of  the  judges  of  the  circuit  or  superior  court 
of  Cook  County,  as  nearly  as  may  be  in  alteration,  as  may  be  deter- 
mined by  said  judges,  or  provided  by  law.”62  The  general  assembly 
has  the  power  to  increase  the  number  of  judges  of  the  circuit  and 
superior  courts  of  Cook  County  by  adding  one  judge  to  either  of  these 
courts  for  every  additional  50,000  inhabitants  in  the  county  over  400,- 
000.63  At  the  present  time  there  are  twenty  judges  for  the  circuit 
court  and  a like  number  for  the  superior  court.  The  judges  receive 
from  the  State  the  same  salary  as  circuit  judges  in  other  parts  of  the 
State,  and  such  additional  salary  from  the  county  as  may  be  prescribed 
by  law.64  It  is  provided  by  statute  that  the  judges  of  the  circuit  and 
superior  courts  of  Cook  County  shall  receive  from  the  county  treasury 
such  further  compensation,  in  addition  to  the  salary  paid  them  by  the 


65  Hurd’s  Revised  Statutes,  Chap.  111a,  Sec.  68.  Sec.  29  of  Art.  VI  of  the 
Constitution  provides  that  the  jurisdiction  of  courts  shall  be  uniform.  The 
Act  allowing  actions  to  set  aside  orders  of  the  Public  Utilities  Commission  to 
be  brought  in  the  circuit  court  of  Sangamon  County  appears  to  be  in  conflict 
with  this  section,  but  the  question  has  never  been  decided  by  the  Supreme  Court. 

50  Hurd’s  Revised  Statutes,  Chap.  79,  Sec.  115. 

57  Hurd’s  Revised  Statutes.  Chap.  37,  Sec.  226. 

58  Hurd’s  Revised  Statutes,  Chap.  37.  Sec.  212. 

59  Constitution  of  1870,  Art.  VI,  Sec.  23. 

60  Constitution  of  1870,  Art.  VI,  Sec.  26. 

61  Constitution  of  1870,  Art.  VI,  Sec.  23. 

62  Constitution  of  1870,  Art.  VI.  Sec.  26. 

93  Constitution  of  1870,  Art.  VI,  Sec.  23. 

84  Constitution  of  1870,  Art.  VI,  Sec.  25.  i 


749 


state,  as  will  make  their  total  compensation  $12,000.  Judges  elected 
prior  to  the  first  Monday  in  June,  1919,  receive  five  thousand  dollars 
per  annum  from  the  state  treasury  and  seven  thousand  dollars  per 
annum  from  the  county  treasury;  those  elected  after  that  date  will 
receive  six  thousand  five  hundred  dollars  per  year  from  the  state  treas- 
ury and  five  thousand  five  hundred  dollars  per  year  from  the  county 
treasury.65 

The  constitution  also  provides  that  the  judge  having  the  shortest 
unexpired  term  shall  be  chief  justice  of  the  court  of  which  he  is  a 
judge.  The  circuit,  superior  and  criminal  courts  are  independent  of 
each  other  in  all  respects,  except  that  judges  of  the  circuit  and  su- 
perior courts  are  assigned  to  hold  court  in  the  criminal  court.  By 
statute  it  is  provided  that  the  terms  of  the  superior  court  shall  com- 
mence on  the  first  Monday  of  every  month  and  those  of  the  circuit 
court  and  criminal  court  on  the  third  Monday  of  every  month.66 


County  courts.  The  constitution  provides  that  there  shall  be 
elected  in  each  county  one  county  judge  and  one  county  clerk,  whose 
terms  of  office  shall  be  four  years. 

The  constitution  further  provides  that  county  courts  “shall  be 
courts  of  record,  and  shall  have  original  jurisdiction  in  all  matters  of 
probate,  settlement  of  estates  of  deceased  persons,  appointment  of 
guardians  and  conservators  and  settlement  of  their  accounts,  in  all 
matters  relating  to  apprentices,  and  in  proceedings  for  the  collection  of 
taxes  and  assessments,  and  such  other  jurisdiction  as  may  be  provided 
for  by  general  law.”67 

When  a probate  court  is  established  in  a county,  the  county  court 
is  deprived  of  its  jurisdiction  (1)  of  probate  matters,  (2)  settlement 
of  the  estates  of  deceased  persons,  (3)  appointment  of  guardians  and 
conservators  and  the  settlement  of  their  accounts,  and  (4)  matters 
relating  to  apprentices.68 

The  county  court  is  given  exclusive  original  jurisdiction  by  statute 
in  the  following  cases : 

1.  Application  to  put  names  on  or  remove  names  from  the 

register  of  voters.69 

2.  Proceedings  for  the  commitment  of  insane  persons.70 

3.  Application  for  the  discharge  from  arrest  or  imprison- 

ment of  insolvent  debtors.72 

4.  Assignments  Jor  the  benefit  of  creditors.73 

It  has  been  also  granted  concurrent  jurisdiction  with  the  Circuit 
Court  in  appeals  from  (1)  justices  of  the  peace  and  police  magis- 

65  Hurd’s  Revised  Statutes,  Chap.  53,  Sec.  61;  Laws  of  Illinois,  1919,  p.  553-4. 

e8  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  77. 

67  Constitution  of  1870.  Art.  VI,  Sec.  18. 

68  Klokke  v.  Dodge,  103  111.  125  (1882). 

69  Hurd’s  Revised  Statutes,  Chap.  46,  Sec.  207. 

70  Hurd’s  Revised  Statutes,  Chap.  85,  Sec  3. 

72  Hurd’s  Revised  Statutes,  Chap.  72.  Sec.  1. 

73  Hurd’s  Revised  Statutes,  Chap.  10b,  Sec.  14. 


750 


crates,74  (2)  the  classification  of  lands  by  drainage  commissioners,75 
and  (3)  from  the  assessment  of  damages  before  justices  of  the  peace 
for  opening,  altering  or  vacating  roads.70  In  cases  where  such  appeals 
are  taken  to  the  County  Court,  a trial  de  novo  is  had. 

By  statute  County  Courts  are  given  original  jurisdiction  concur- 
rent with  the  Circuit  Court  in  the  following  cases : 

(a)  Cases  in  which  justices  of  the  peace  have  jurisdiction,  where 
the  amount  claimed  or  value  of  the  property  in  controversy  does  not 
exceed  one  thousand  dollars.77 

(b)  Eminent  domain  cases.78 

(c)  Contest  of  elections  for  county,  township  and  precinct 
offices.79 

(d)  Matters  pertaining  to  the  organization  of  drainage  districts.80 

(e)  Proceedings  to  condemn  unlawful  devices  for  the  killing 
of  fish  under  the  fish  and  game  law.81 

(f)  Cases  involving  the  treatment  and  care  of  dependent,  neg- 
lected and  delinquent  children.82  In  Cook  County  such  cases  are  heard 
in  what  is  termed  the  “juvenile  court.”  This  court  is  a branch  of  the 
circuit  court  of  Cook  County  and  is  presided  over  by  one  of  the  judges 
of  that  court.83 

(g)  Applications  for  mothers’  pensions.84 

(h)  Non-indictable  offenses  where  the  punishment  is  not  im- 
prisonment in  the  penitentiary  or  death.  The  phrase  “non-indictable 
offenses”  is  used  in  this  discussion  to  designate  offenses  which  may 
under  the  constitution  be  prosecuted  without  indictment,  although  as  a 
matter  of  fact  such  offenses  are  tried  in  the  circuit  court  only  on  in- 
dictment.85 

It  is  provided  by  statute  that  the  County  Court  in  counties  which 
do  not  have  probate  courts  shall  have  both  probate  and  law  terms.  The 
Probate  terms  begin  on  the  first  Monday  of  every  month.  The  court 
is  always  open  for  the  transaction  of  probate  matters  and  for  hearing 
applications  for  the  discharge  of  insolvent  debtors  from  arrest;  or  im- 
prisonment. Other  matters  are  cognizable  only  at  the  law  terms.86  The 
law  terms  are  fixed  by  the  General  Assembly  at  different  times  for  the 
various  counties.  Appeals  are  taken  from  the  County  Court  to  the 
Circuit,  Appellate,  or  Supreme  Court.  It  is  provided  by  statute  that 
appeals  and  writs  of  error  may  be  taken  and  prosecuted  from  the  final 
orders,  judgments  and  decrees  of  the  County  Court  to  the  Supreme 
Court  or  the  Appellate  Court  in  proceedings  for  the  confirmation  of 
special  assessments,  in  proceedings  for  the  sale  of  lands  for  taxes  and 
special  assessments,  and  in  all  common  law  and  attachment  cases  and 


74  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  95. 

75  Hurd’s  Revised  Statutes,  Chap.  42,  Sec.  101;  Chap.  37,  Sec.  82d. 

70  Hurd’s  Revised  Statutes,  Chap.  121,  Sec.  88. 

77  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  95. 

78  Hurd’s  Revised  Statutes,  Chap.  47,  Sec.  2. 

79  Hurd’s  Revised  Statutes,  Chap.  46,  Secs.  97.  98. 

89  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  82d. 

81  Hurd’s  Revised  Statutes,  Chap.  56,  Sec.  47 

82  Hurd’s  Revised  Statutes,  Chap.  23,  Sec.  169,  170. 

83  Hurd’s  Revised  Statutes,  Chap.  23,  Sec.  171. 

84  Hurd’s  Revised  Statutes,  Chap.  23,  Sec.  298. 

85  Hurd’s  Revised  Statutes,  Chap.  37.  Sec.  95 

88  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  94. 


751 


cases  of  forcible  entry  and  forcible  detainer,  and  to  the  Circuit  Court 
in  all  other  matters.  Appeals  to  the  Circuit  Court  are  tried  de  novo.87 

Other  provisions  relating  to  appeals  from  the  County  Court  are 
found  in  statutes  defining  the  jurisdiction  of  Appellate  Courts  and  in 
the  Practice  Act.  The  Appellate  Court  Act88  provides  that  the  Ap- 
pellate Court  shall  have  jurisdiction  of  “all  matters  of  appeal,  or  writs 
of  error  . . . from  . . . the  Circuit  Courts  ...  or 

County  Courts  ...  in  any  suit  or  proceeding  at  law  or  in  chan- 
cery other  than  criminal  cases,  not  misdemeanors,  and  cases  involving 
a franchise  or  freehold  or  the  validity  of  a statute.”  The  Practice 
Act89  provides  that  appeals  from,  and  writs  of  error  to,  certain  courts, 
including  the  County  Court,  shall  be  taken  directly  to  the  Appellate 
Court  in  all  criminal  matters  below  the  grade  of  felony  and  directly  to 
the  Supreme  Court  in  all  criminal  cases  above  the  grade  of  misde- 
meanors, and  in  cases  in  which  a franchise  or  freehold  or  the  validity 
of  a statute  or.  a construction  of  the  constitution  is  involved,  in  cases 
in  which  the  validity  of  a municipal  ordinance  is  involved  and  in  which 
the  trial  judge  shall  certify  that  in  his  opinion  the  public  interest  so  re- 
quires, and  in  cases  relating  to  the  revenue,  or  in  which  the  state  is  in- 
terested as  a party  or  otherwise. 


Probate  courts.  Section  20  of  Article  VI  of  the  constitution 
authorizes  the  General  Assembly  to  provide  for  the  establishment  of 
probate  courts  in  each  county  having  a population  of  over  50,000,  and 
provides  for  the  election  of  a judge  thereof  whose  term  of  office  shall 
be  the  same  as  that  of  the  County  Judge,  and  who  shall  be  elected  at 
the  same  time  and  in  the  same  manner  as  County  judges.  All  other  de- 
tails of  organization  are  left  to  the  General  Assembly. 

The  General  Assembly  has  established  probate  courts  in  each 
county  having  a population  of  70,000  or  more.90  The  Probate  Courts 
are  held  at  the  county  seat.  They  are  courts  of  record.  The  terms  of 
these  courts  commence  on  the  first  Monday  of  each  month.91  Judges 
are  elected  for  a term  of  four  years.92 

The  part  of  Section  20  of  Article  VI  of  the  constitution  which 
deals  with  the  jurisdiction  of  Probate  Courts  reads:  “Said  courts, 
when  established,  shall  have  original  jurisdiction  of  all  probate  mat- 
ters, the  settlement  of  estates  of  deceased  persons,  the  appointment  of 
guardians  and  conservators,  and  settlement  of  their  accounts ; in  all 
matters  relating  to  apprentices,  and  in  cases  of  sale  of  real  estate  of 
deceased  persons  for  the  payment  of  debts”.  The  jurisdiction  of  pro- 
bate courts  is  thus  limited  by  the  constitution  to  the  particular  subjects 
named.  There  is  no  general  clause,  as  there  is  in  respect  to  County 
Courts,  which  authorizes  the  legislature  to  extend  the  jurisdiction  of 

87  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  212-213. 

88  Hurd's  Revised  Statutes,  Chap.  37,  Sec.  25. 

89  Hurd’s  Revised  Statutes,  Chap.  110,  Sec.  118. 

"Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  216. 

91  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  221. 

"Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  218;  Constitution  of  1870,  Art. 
VI,  Sec.  32. 


Probate  Courts  to  subjects  other  than  those  specifically  enumerated. 
In  the  case  of  Frackelton  v.  Masters,  249  111.  30,  (1911)  it  was  held 
that  the  administration  of  testamentary  trusts  is  not  a probate  matter 
but  a chancery  matter,  and  that  the  legislature  cannot  extend  the  jur- 
isdiction of  probate  courts  to  include  the  administration  of  such  trusts. 

By  statute  it  is  provided  that  appeals  may  be  taken  from  the  final 
orders,  judgments  and  decrees  of  the  Probate  Court  to  the  Circuit 
Court  in  all  matters  except  in  proceedings  of  executors,  administrators, 
guardians  and  conservators  for  the  sale  of  real  estate.  Appeals  from 
the  Probate  Court  are  tried  de  novo  in  the  Circuit  Court.  Appeals  in 
proceedings  for  the  sale  of  real  estate  are  taken  to  the  Appellate  or 
Supreme  Court. 


City  courts.  The  constitution  vests  the  judicial  power  in  cer- 
tain enumerated  courts,  and  in  such  courts  as  may  be  established  by 
law  in  and  for  cities  and  incorporated  towns.  The  only  limitation  of 
the  power  of  the  general  assembly  to  establish  city  courts  is  that  all 
laws  relating  to  courts  are  required  to  be  general  and  of  uniform 
operation;  and  the  organization,  jurisdiction,  powers,  proceedings  and 
practice  of  all  courts  of  the  same  class  or  grade,  so  far  as  regulated  by 
law,  and  the  force  and  effect  of  the  process,  judgments  and  decrees  of 
such  courts,  severally,  are  required  to  be  uniform.93 

The  statutes  provide  that  city  courts  may  be  established  in  any 
city  captaining  a population  of  3,000  or  more.94  To  establish  such  a 
court  the  common  council  must  submit  a resolution  or  ordinance  for  a 
city  court  to  the  voters  of  the  city,  which  resolution  or  ordinance  must 
be  adopted  by  a two-thirds  vote. 

City  courts  may  be  established  to  consist  of  one  or  more  judges, 
according  to  the  population,  but  can  not  consist  of  over  five  judges.95 

Judges  are  elected  in  the  same  manner  as  other  city  officials.  They 
hold  office  for  a term  of  four  years.  They  qualify  in  the  same  manner 
and  have  the  same  powers  as  judges  of  the  circuit  court.96 

In  cities  having  a population  of  less  than  5,000,  judges  of  the  city 
courts  receive  a salary  of  $500,  which  is  paid  out  of  the  city  treasury. 
In  cities  having  a population  of  over  5,000,  judges  of  the  city  court  are 
paid  a salary  out  of  the  state  treasury.  This  salary  is  from  $1,500  to 
$4,000,  being  graduated  according  to  the  population  of  the  city. 

The  statutes  prescribe  that  the  city  courts  “shall  have  concurrent 
jurisdiction  with  the  circuit  court  witbin  the  city  in  which  the  same 
may  be  in  all  civil  cases  both  law  and  chancery,  and  in  all  criminal 
cases  arising  in  said  city,  and  in  appeals  from  justices  of  the  peace  of 
said  city.”97  “In  all  cases  both  at  law  and  equity”  does  not  include 
purely  statutory  proceedings  such  as  contests  of  elections.98 

83  Constitution  of  1870,  Art.  VI,  Sec.  29. 

94  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  260. 

95  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  260. 

"Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  244. 

97  Hurd’s  Revised  Statutes,  Chap.  37,  Sec. 240. 

9S  Brueggemann  v.  Young,  208  111.  181  (1904). 


The  municipal  court  of  Chicago.  The  municipal  court  of  Chi- 
cago was  created  in  1905  by  the  general  assembly.  The  authority  of 
the  general  assembly  to  establish  this  court  is  derived  from  Section  1 
of  Article  VI  and  Section  34  of  Article  IV  of  the  constitution.  Sec- 
tion- 1 of  Article  VI  vests  the  judicial  power  in  certain  enumerated 
courts  and  in  such  courts  as  may  be  provided  by  law  in  and  for  cities 
and  incorporated  towns.  Section  34  of  Article  IV  is  an  amendment  to 
the  constitution.  It  was  adopted  in  1904.  Among  other  things  it  gives 
the  general  assembly  power  to  provide  a system  of  local  municipal  gov- 
ernment for  the  city  of  Chicago,  and  in  the  event  that  municipal  courts 
are  created,  to  prescribe  the  jurisdiction  and  practice  of  these  courts, 
to  abolish  justices  of  the  peace  in  Chicago,  and  to  limit  the  jurisdiction 
of  justices  of  the  peace  in  Cook  County  outside  of  Chicago  to  that 
territory. 

All  details  as  to  the  organization  and  jurisdiction  of  the  municipal 
court  of  Chicago  are  prescribed  by  statute." 

The  municipal  court  is  made  up  of  a chief  justice  and  thirty  asso- 
ciate judges.  The  chief  justice  and  associate  judges  are  elected  by  the 
voters  of  the  city  as  a whole.  The  election  of  the  chief  justice  takes 
place  every  six  years.  Ten  associate  judges  are  elected  every  two 
years.  The  city  council  of  Chicago  is  given  authority  to  fix  the  salaries 
of  the  judges  and  to  increase  the  number  of  judges  to  thirty-six. 

The  municipal  court  of  Chicago  is  of  particular  interest  in  view  of 
the  fact  that  it  was  one  of  the  first  unified  courts  to  be  established  in 
this  country.  The  organization  and  operation  of  this  court  is  dis- 
cussed in  a later  chapter.* 1 

The  municipal  court  of  Chicago  has  unlimited  jur  Auction  of 
actions  upon  contract  and  actions  for  conversion  or  injury  to  personal 
property.  It  has  also  general  jurisdiction  in  all  cases  where  the  plaint- 
iff does  not  claim  over  $1,000.  It  also  has  jurisdiction  of  criminal 
cases,  in  which  the  punishment  is  by  fine  or  imprisonment  other  than 
in  the  penitentiary  and  in  all  other  criminal  cases  which  may  be  prose- 
cuted otherwise  than  on  indictment. 


Justices  of  the  peace  and  police  magistrates.  Section  21  of 
Article  VI  of  the  constitution  provides  as  follows : “Justices  of  the 

peace,  police  magistrates,  and  constables  shall  be  elected  in  and  for 
such  districts  as  are,  or  may  be,  provided  by  law,  and  the  jurisdiction 
of  such  justices  of  the  peace  and  police  magistrates  shall  be  uniform.” 
The  statutes  provide  all  details  concerning  the  jurisdiction  and 
election  of  justices  of  the  peace.  Two  justices  of  the  peace  and  two 
constables  are  elected  in  each  town  in  counties  under  township  or- 
ganization, and  in  each  precinct  in  counties  not  under  township  or- 
ganization.2 An  additional  justice  of  the  peace  and  constable  are 
elected  in  each  township  or  precinct  for  every  one  thousand  inhabitants 
exceeding  two  thousand  inhabitants  of  such  town  or  precinct,  but  the 

89  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  264-330. 

1 See  p.  776. 

2 Hurd’s  Revised  Statutes,  Chap.  79,  Sec.  1. 


754 


number  in  any  town  or  precinct  is  limited  to  five.  The  term  of  office 
of  justices  of  the  peace  and  constables  is  four  years.  Justices  of  the 
peace  have  jurisdiction  in  their  respective  counties  (with  the  exception 
of  those  in  Cook  County)  in  certain  classes  of  cases  where  the  amount 
involved  does  not  exceed  three  hundred  dollars  and  in  criminal  cases 
punishable  by  fine  where  such  fine  does  not  exceed  three  hundred  dol- 
lars. Justices  of  the  peace  may  also  issue  warrants  for  persons  charged 
with  criminal  offenses  and  upon  hearing  discharge  such  persons,  or  if 
there  is  probable  cause  to  believe  the  prisoner  guilty,  commit  him  to 
jail  for  trial. 

In  towns,  cities  and  villages  incorporated  under  charters  granted 
by  special  acts  of  the  general  assembly  or  under  a general  act  there 
may  also  be  elected  a police  magistrate.3  Police  magistrates  have  the 
same  jurisdiction  as  justices  of  the  peace,  and  hold  office  for  four 
years.4 

In  1881  it  was  attempted  to  divide  Cook  County  into  two  dis- 
tricts— the  city  of  Chicago  constituting  one  district,  and  the  territory 
outside  the  city  and  within  the  county  the  other  and  to  limit  the  juris- 
diction of  the  justices  of  the  peace  in  each  district  to  the  territory  con- 
stituting such  district.  This  act  was  declared  unconstitutional  on  the 
ground  that  it  contravened  the  provision  of  the  constitution  requiring 
the  jurisdiction  of  justices  of  the  peace  to  be  uniform.5  In  1904  the 
constitution  was  amended  by  adopting  Section  34  of  Article  IV.  This 
amendment  authorizes  the  legislature,  upon  the  establishment  of  a 
municipal  court  for  Chicago,  to  abolish  justices  of  the  peace  in  Chicago 
and  limit  the  jurisdiction  of  those  in  Cook  County  outside  of  Chicago 
to  the  territory  outside  of  that  city.  The  general  assembly  exercised 
this  authority  in  1905. 

The  constitution  authorizes  a jury  of  less  than  twelve  men  in  the 
trial  of  civil  cases  before  a justice  of  the  peace.6  Accordingly  the 
legislature  has  provided  as  follows : “ In  all  cases  of  trial  before  a jus- 
tice of  the  peace,  either  party  may  have  the  cause  tried  by  a jury,  if  he 
shall  so  demand  before  the  trial  is  entered  upon  and  will  first  pay  the 
fees  of  the  jurors.  The  number  of  jurors  shall  be  six,  or  any  greater 
number  not  exceeding  twelve  as  either  party  may  desire.”7 

3 Hurd’s  Revised  Statutes,  Chap.  24  Secs.  192,  249. 

4 Hurd’s  Revised  Statutes,  Chap.  24,  Sec.  192. 

5 People  v.  Meech,  101  111.  200  (1882). 

6 Section  5,  Article  II,  Constitution  of  1870. 

7 Hurd’s  Revised  Statutes,  Chap.  79,  Sec.  48. 


IV.  ANALYSIS  OF  WORKING  OF  JUDICIAL  ORGANIZA- 
TION IN  ILLINOIS. 


In  analyzing  the  operation  of  the  judicial  system  in  Illinois  an 
attempt  will  be  made,  first  of  all,  to  present  a picture  of  the  court 
geography  of  the  state.  Beginning  with  the  county  as  the  judicial 
unit,  the  organization  of  the  circuits,  appellate  court  districts  and 
supreme  court  districts  will  be  set  forth,  and  the  location  of  the  pro- 
bate and  city  courts  pointed  out.  The  jurisdictional  relationships  of 
the  constituent  parts  of  the  judicial  organization  will  then  be  briefly 
discussed.  This  will  be  followed  by  a somewhat  detailed  discussion  of 
the  practical  working  of  each  part  of  the  system,  commencing  with 
the  justice  of  the  peace  courts.  The  working  of  the  system  as  a whole 
will  be  shown  in  the  different  types  of  counties.  The  counties  other 
than  Cook  are  referred  to,  for  the  sake  of  brevity,  as  “down-state 
counties.”  The  Chicago  and  Cook  County  situation  will  receive  sep- 
arate treatment. 

Court  geography  of  Illinois.  In  studying  the  court  geography 
of  Illinois  reference  should  be  made  to  the  two  maps  inserted  at  pages 
755  and  821  of  this  bulletin.  The  first  map  shows  the  counties,  the 
circuits,  and  the  appellate  court  districts.  It  also  shows  the  city  courts 
and  the  counties  having  probate  courts.  The  second  map  shows  the 
supreme  court  districts. 

The  unit  of  judicial  organization  in  Illinois  is  the  county.  The 
jurisdiction  of  justices  of  the  peace  and  police  magistrates  is  limited 
by  the  county  line.  The  county  court  and  the  probate  court  are  county 
organizations.  The  circuit  court  in  the  down-state  circuits  is  not  a 
single  court  for  the  entire  circuit.  On  the  contrary  the  judges  preside 
over  a series  of  courts,  one  for  each  county,  each  court  being  admin- 
istered as  a distinct  county  organization.  The  jurisdiction  of  the 
state’s  attorney  is  confined  to  the  county.  The  jury  and  the  grand 
jury  are  county  institutions.  The  supreme  court  of  Illinois  has  held 
in  People  v.  Rodenberg,  254  111.  386  (1912)  that  a trial  court  with 
jurisdiction  in  two  counties  or  drawing  jurors  from  two  counties  can- 
not be  created.  Both  the  civil  and  criminal  law  are  administered 
through  organizations  built  upon  the  county  as  the  basic  unit. 

There  are  102  counties  in  the  state.  Exclusive  of  Cook  County, 
the  various  counties  range  in  population  from  7015  (Hardin  county) 
to  119,870  (St.  Clair  county).1  Four  counties,  Hardin,  Calhoun,  Hen- 
derson and  Putnam  have  a population  of  less  than  10,000.  In  area 
there  is  a variation  from  173  square  miles  (Putnam  county)  to  1,191 
square  miles  (McLean  county).2 

1 Population  figures  are  of  1910  census. 

2 For  table  showing  the  area  and  population  of  each  county  in  the  state, 
see  appendix,  page  892. 


756 


Each  county  has  a county  court.  In  Cook  County  and  in  the 
following  nine  down-state  counties  which  have  a population  in  excess 
of  70,000,  there  are  also  probate  courts Kane,  La  Salle,  Madison, 
Peoria,  Rock  Island,  Sangamon,  St.  Clair,  Vermilion  and  Will.  Coun- 
ties having  probate  courts  in  addition  to  county  courts  are  indicated 
on  the  map  by  a black  square  around  the  county  seat. 

There  are  27  city  courts  in  the  state.* * 3  The  city  courts  are  indi- 
cated on  the  map  by  stars.  Four  of  the  cities  having  city 
courts,  Aurora,  East  St.  Louis,  Elgin  and  Moline,  have  a popula- 
tion of  more  than  25,000.  One,  Zion  City,  has  less  than  5,000  inhabi- 
tants. The  remaining  22  city  courts  are  located  in  cities  now  having 
populations  ranging  from  5,000  to  20,000.  In  five  cities,  Benton, 
Charleston,  Harrisburg,  Macomb  and  Marion,  city  courts  are  located 
at  county  seats.  Eight  of  the  27  city  courts  are  to.be  found  in  the 
mining  area  composed  of  Franklin,  Jackson,  Perry,  Saline  and  William- 
son counties.  Three  of  these  eight  courts,  those  at  Benton,  Harris- 
burg and  Marion  are  at  county  seats.  Coles,  Franklin,  Kane,  and  Mad- 
ison counties  each  has  two  city  courts.  In  Coles  and  Franklin  counties 
one  of  the  two  courts  is  at  the  county  seat.  Williamson  county  has 
three  city  courts,  one  at  Marion,  the  county  seat,  and  the  other  two'  at 
Herrin  and  Johnston  City. 

Exclusive  of  Cook  County  which,  under  the  constitution  of  1870, 
forms  one  judicial  circuit,  the  state  of  Illinois  is  divided  into  seventeen 
circuits,  each  circuit  being  composed  of  contiguous  counties.  The  va- 
rious circuits  are  indicated  on  the  map  at  page  755  by  a distinctive 
shading  scheme.  The  number  of  counties  in  the  various  circuits  varies 
as  does  the  population  of  the  circuits.  The  second  circuit  contains  twelve 
counties ; the  first  and  fourth,  nine  each ; the  eighth,  eight ; the  third, 
seven ; the  sixth,  seventh  and  ninth  circuits,  six  each ; the  fifth,  tenth, 
eleventh  and  fifteenth,  five  each ; the  fourteenth,  sixteenth  and  seven- 
teenth, four  each;  the  twelfth  and  thirteenth,  three  each.  In  1910 
their  population  ranged  from  133,127  in  the  fifteenth  circuit  to  310,267 
in  the  third  circuit.  A table  giving  comparative  statements  of  the  pop- 
ulations of  the  various  circuits  by  counties  in  1890  (the  census  in  ef- 
fect at  the  time  the  present  circuits  were  created),4  and  1910  is  printed 
in  the  appendix  on  page  888. 

The  state  is  divided  into  four  appellate  court  districts.  The  bound- 
aries of  the  various  districts  are  indicated  on  the  map  at  page  755  by 
heavy  black  lines.  Aside  from  Cook  County,  which  comprises  the  first 
appellate  district,  the  appellate  districts,  though  composed  of  contig- 
uous counties,  in  several  instances  include  frational  parts  of  a circuit. 
The  ninth,  tenth  and  eleventh  circuits  are  split,  part  of  the  counties  of 
each  being  in  the  second  appellate  district  and  part  in  the  third.  Sim- 
ilarly the  fourth  circuit  is  split  between  the  third  and  fourth  appellate 


• 3 City  courts  are  located  at  Alton,  Aurora,  Beardstown,  Benton,  Canton, 
Carbondale,  Charleston,  Chicago  ^eights,  Dekalb,  Duquoin,  Bast  St.  Louis, 

Elgin,  Granite  City,  Harrisburg,  Herrin,  Johnston  City,  Kewanee,  Litchfield. 
Macomb,  Marion,  Mattoon,  Moline,  Pana,  Spring  Valley,  Sterling,  West  Frank- 

fort, and  Zion  City.  „ 

4 See  act  of  April  23,  1897,  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  73. 


757 


districts.5  A table  giving  the  population  of  the  various  appellate  dis- 
tricts by  counties  is  printed  in  the  appendix  on  page  886. 

For  the  purpose  of  electing  supreme  court  judges  the  state  is  di- 
vided into  seven  supreme  court  districts.  These  districts  are  shown  on 
the  map  at  page  821.  The  boundary  lines  of  the  supreme  court  dis- 
tricts intersect  both  circuit  and  appellate  court  districts.  This  would, 
however,  seem  to  be  immaterial  when  it  is  considered  that  the  sole  pur- 
pose of'  the  supreme  court  district  is  to  provide  areas  from  which  to 
elect  the  seven  judges  of  the  supreme  court.  The  following  table  shows 
a considerable  variation  in  the  population  of  these  districts:6 

District  Population 


First  . . 
Second 
Third  . 
Fourth 
Fifth  ., 
Sixth  . 
Seventh 


605,250 

565,573 

631,746 

402,040 

400,263 

414,873 

2,618,846 


Total 


5,638,591 


Jurisdictional  relationships.  Before  proceeding  to  a detailed 
analysis  of  the  working  of  the  judicial  system,  it  seems  desirable  to 
make  a brief  statement  of  the  jurisdictional  relationships  of  the  various 
trial  courts  open  to  litigants  in  the  different  types  of  down-state  coun- 
ties, discussing  in  a general  way  possible  choices  of  courts  resulting 
from  overlappings  of  jurisdiction.  The  appellate  system  will  also  be 
briefly  outlined. 

Types  of  dozvn-state  counties.  The  down-state  counties  fall 
into  one  of  four  types : 

(1)  Counties  containing,  in  addition  to  the  justice  of  the  peace 
courts,  a county  court  and  a circuit  court.  This  is  the  simplest  type  of 
judicial  organization  in  the  State.  Seventy-six  counties  fall  into  this 
class.7 


5 In  the  ninth  circuit  Henderson,  Knox  and  Warren  counties  are  in  the 
second  appellate  district;  Hancock,  McDonough  and  Fulton  are  in  the  third. 
All  of  the  counties  of  the  tenth  circuit  are  in  the  second  appellate  district 
except  Tazewell,  which  is  in  the  third.  In  the  eleventh  circuit  Livingston  and 
Woodford  are  in  the  second  appellate  district;  Logan.  McLean  and  Ford  are 
in  the  third.  In  the  fourth  circuit  Christian,  Montgomery  and  Shelby  counties 
are  in  the  third  appellate  district;  Clay,  Effingham,  Fayette,  Jasper  and  Marion 
are  in  the  fourth  appellate  district. 

6 For  more  detailed  statement  of  population  of  the  supreme  court  districts 
by  counties  see  appendix,  page  885. 

7 These  counties  are:  Adams,  Alexander,  Bond,  Boone,  Brown,  Calhoun, 

Carroll,  Champaign,  Clark,  Clay,  Clinton,  Crawford,  Cumberland,  Dewitt,  Doug- 
las, Dupage,  Edgar,  Edwards,  Effingham,  Fayette,  Ford,  Gallatin,  Greene, 
Grundy,  Hamilton,  Hancock,  Hardin,  Henderson.  Iroquois,  Jasper,  Jefferson, 
Jersey,  Jo  Daviess,  Johnson,  Kankakee,  Kendall,  Knox,  Lawrence,  Lee,  Livings- 
ton, Logan,  McHenry,  McLean,  Macon,  Macoupin,  Marion,  Marshall,  Mason. 
Massac,  Menard,  Mercer,  Monroe,  Morgan,  Moultrie,  Ogle.  Piatt,  Pike,  Pope, 
Pulaski,  Putnam,  Randolph,  Richland,  Schusder,  Scott,  Shelby,  Stark,  Stephen- 
son, Tazewell.  Union,  Wabash,  Warren,  Washington,  Wayne,  White,  Winnebago, 
and  Woodford. 


758 


(2)  Counties  which  contain  one  or  more  city  courts  in  addition 

to  the  justice  of  the  peace  courts,  a county  court  and  a circuit  court. 
Type  2 comprises  the  following  counties : Bureau,  Cass,  Christian, 

Coles,  DeKalb,  Franklin,  Fulton,  Henry,  Jackson,  Lake,  McDonough, 
Montgomery,  Perry,  Saline,  Whiteside,  and  Williamson. 

(3)  Counties  which  contain  a probate  court,  one  or  more  city 
courts,  a county  court,  a circuit  court,  and  the  justice  of  the  peace 
courts.  This  type  adds  a probate  court  to  type  2 and  a probate  court 
and  one  or  more  city  courts  to  type  1.  This  type  includes  Kane, 
Madison,  Rock  Island,  and  St.  Clair  counties. 

(4)  Counties  containing  justices  of  the  peace  courts,  a county 
court,  a probate  court  and  a circuit  court,  but  no  city  courts.  This 
type  adds  a probate  court  to  type  1,  and  omits  the  city  court  from  types 
2 and  3.  Type  4 includes  LaSalle,  Peoria,  Sangamon,  Vermilion,  and 
Will  counties. 

Type  1.  The  simplest  type  of  judicial  organization,  which  is 
represented  by  the  first  group  of  counties,  contains,  in  addition  to  the 
justice  of  the  peace  courts,  a circuit  court  and  a county  court.  Justices 
of  the  peace  and  police  magistrates  have  jurisdiction  in  criminal  mat- 
ters which  are  punishable  only  by  a fine  not  exceeding  $300,  and  in  a 
large  variety  of  civil  cases  where  the  amount  involved  does  not  exceed 
$300.8  The  circuit  court  has  original  jurisdiction  in  all  cases  at  law 
and  in  equity9  and  in  all  criminal  cases.10  The  county  court  is,  by  the 
constitution,  given  jurisdiction  in  proceedings  for  the  collection  of 
taxes  and  assessments,  and,  in  counties  where  there  are  no  probate 
courts,  jurisdiction  in  all  probate  matters.* 11  This  court  has  concurrent 
criminal  jurisdiction  with  the  circuit  court  is  non-indictable  offenses 
where  the  punishment  is  not  imprisonment  in  the  penitentiary  or 
death.12  In  law  matters  it  has  concurrent  jurisdiction  with  the 
circuit  court  in  that  class  of  cases  in  which  justices  of  the  peace 
have  jurisdiction  where  the  amount  claimed  or  the  value  of  the  prop- 
erty in  controversy  does  not  exceed  $T,000.13  The  circuit  and  county 
courts  have  concurrent  original  jurisdiction  in  various  statutory  pro- 
ceedings and  concurrent  appellate  jurisdiction  in  appeals  from  justices 
of  the  peace  and  police  magistrates.14  Appeals  from  the  probate  court 
are  in  practically  all  cases  taken  to  the  circuit  court,  where  a trial 
de  novo  is  had.15 

Let  us  now  see  what  choices  of  courts  are  available  to  a litigant  in 
counties  of  type  1 as  a result  of  the  overlappings  of  jurisdiction  just 
pointed  out.  If  his  claim  is  a contract  claim  involving  $300  or  less,  or 
any  other  kind  of  claim  for  a similar  amount  justiciable  in  a court  of 
a justice  of  the  peace  he  may  sue  the  defendant  before  any  justice  of 
the  peace  or  police  magistrate  in  the  county  or  bring  an  action  either  in 
the  circuit  or  county  court.  In  other  words,  he  may  select  a justice’s 
court  or  either  one  of  two  courts  of  record.  If  the  amount  of  the 

8 Hurd’s  Revised  Statutes,  Chap.  79,  Sec.  16. 

9 Constitution,  Art.  VI,  Sec.  12. 

10  Hurd’s  Revised  Statutes,  Chap.  38,  Sec.  392. 

11  Constitution,  Art.  VI,  Secs.  18,  20. 

12,Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  95  and  Chap.  38,  Sec.  392. 

13  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  95. 

14  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  95. 

16  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  212. 


759 


claim  is  greater  than  $300,  he  cannot  bring  his  action  before  a justice 
of  the  peace.  He  may,  however,  sue  either  in  the  county  court  or  the 
circuit  court,  provided  the  amount  claimed  is  not  greater  than  $1,000. 
If  greater  than  $1,000,  he  is  confined  to  the  circuit  court,  since  the 
jurisdiction  of  the  county  court  in  that  kind  of  cases  is  limited  to 
$1,000.  Chancery  matters  may  be  brought  in  the  circuit  court  only. 
Misdemeanors  may  be  prosecuted  either  in  the  county  court  or  in  the 
circuit  court.  If  of  a petty  character  they  are  also  triable  before  a 
justice  of  the  peace  or  police  magistrate.  The  more  serious  crimes 
may  be  prosecuted  only  in  the  circuit  court.  Appeals  from  justices  of 
the  peace  may  be  taken  either  to  the  circuit  or  county  courts.  The 
county  court  alone  has  original  jurisdiction  in  probate  matters ; appeals 
from  the  county  court  in  such  cases  must  ordinarily  be  taken  to  the 
circuit  court  where  a trial  de  novo  is  had. 

Type  2.  The  second  type  of  county  contains  all  the  courts  of  the 
first  type.  In  addition  it  has  one  or  more  city  courts.  In  other  words, 
it  has  the  justice  of  the  peace  courts,  a county  court,  a circuit  court, 
and  the  city  court  or  courts.  The  city  court  has  “concurrent  juris- 
diction with  the  circuit  court  within  the  city  in  which  the  same  may  be, 
in  all  civil  cases  both  law  and  chancery,  and  in  all  criminal  cases  arising 
in  said  city  and  in  appeals  from  justices  of  the  peace  of  said  city”.16 
Let  us  take  Franklin  County  as  an  example  of  this  type.  This  county 
has  city  courts  at  Benton,  the  county  seat,  and  at  West  Frankfort. 
Since  the  jurisdiction  of  a city  court  in  criminal  cases  is  confined  to 
crimes  committed  in  the  city,  and  since  in  civil  cases  its  process  does 
not  run  beyond  the  city  limits,  it  can  not  take  jurisdiction  over  crimes 
not  committed  within  the  city,  or  in  civil  cases  where  the  defendant  is 
not  amenable  to  the  process  of  the  court.  In  cases  not  coming  within 
the  jurisdiction  of  one  of  the  two  city  courts  of  Franklin  County,  the 
choice  of  courts  available  to  the  state’s  attorney  or  a plaintiff  in  a civil 
suit  is  the  same  as  in  the  type  of  county  already  discussed.  Suppose, 
however,  that  a crime  is  committed  in  Benton  or  in  West' Frankfort. 
If  of  a petty  nature  the  defendant  may  be  prosecuted  either  before  a 
justice  of  the  peace  or  police  magistrate,  or  in  the  county,  circuit  or 
appropriate  city  court.  If  a misdemeanor  of  a kind  beyond  the  juris- 
diction of  a justice  of  the  peace  or  police  magistrate,  the  state’s  at- 
torney may  prosecute  in  the  conuty,  circuit  or  city  court  provided  it  is 
a non-indictable  offense.  If  an  indictable  offense  the  prosecuting 
authorities  may  still  choose  between  the  city  court  and  the  circuit 
court. 

Similarly  in  a contract  case  involving  $300  or  less,  the  plaintiff 
may,  provided  the  situation  is  such  that  the  defendant  is  subject  to  the 
process  of  one  of  the  two  city  courts,  bring  suit  in  any  one  of  four 
different  tribunals.  He  may  sue  the  defendant  before  any  justice  of 
the  peace  or  police  magistrate  in  Franklin  County,  or  he  may  choose 
between  the  county  court,  the  circuit  court,  and  the  appropriate  city 
court.  If  the  case  involves  over  $300,  the  justice  of  the  peace  loses 
jurisdiction.  The  plaintiff  may,  however,  still  proceed  in  the  circuit 
court  or  the  city  court,  or,  if  the  amount  claimed  does  not  exceed 


16  Hurd’s  Revised  Statutes.  Chap.  37,  Sec.  240. 


760 


$1,000,  also  in  the  county  court.  If  the  amount  is  over  $1,000,  suit 
may  be  brought  either  in  the  city  court  or  the  circuit  court.  Chancery 
proceedings  may  be  brought  either  in  the  circuit  court  or  the  city  court. 
Appeals  from  justices  of  the  peace  in  Benton  and  West  Frankfort  may 
be  taken  to  the  county  court,  the  circuit  court  or  the  appropriate  city 
court.  The  county  court  alone  has  original  jurisdiction  in  probate  mat- 
ters. In  various  statutory  proceedings  the  plaintiff  may  choose  be- 
tween the  county  court  and  the  circuit  court. 

Type  3.  Type  3,  which  includes  the  counties  of  Kane,  Madison, 
Rock  Island,  and  St.  Clair,  is  like  Type  2,  except  that  here  a distinct 
court,  the  probate  court,  relieves  the  county  court  of  all  probate  mat- 
ters. The  probate  court  has  exclusive  original  jurisdiction  of  probate 
matters,  the  settlement  of  the  estates  of  deceased  persons,  the  appoint- 
ment of  guardians  and  conservators  and  the  settlement  of  their  ac- 
counts, matters  relating  to  apprentices,  and  cases  of  the  sale  of  real 
estate  of  deceased  persons  for  the  payment  of  debts.  Appeals  from  the 
probate  court  must  ordinarily  be  taken  to  the  circuit  court,  where  a 
trial  de  novo  is  had. 

Type  4.  The  fourth  type  of  county  is  like  the  third  except  that 
it  has  no  city  courts.  In  other  words,  it  has  the  justice  of  the  peace 
courts,  a county  court,  a probate  court  and  a circuit  court.  It  includes 
LaSalle,  Peoria,  Sangamon,  Vermilion  and  Will  counties.  Aside  from 
probate  matters  which,  here,  as  in  the  preceding  type,  are  taken  from 
the  county  court  and  handled  by  a separate  court,  the  system  operates 
in  these  counties  precisely  as  it  does  in  counties  of  type  1. 

Appeals.  In  addition  to  the  trial  courts  there  is  the  supreme 
court  and  an  intermediate  appellate  court.  The  supreme  court  has 
original  jurisdiction  concurrent  with  other  courts  in  cases  relating  to 
the  revenue,  and  in  mandamus  and  habeas  corpus.  The  extent  to 
which  the  supreme  court  will  exercise  its  original  jurisdiction  has  al- 
ready been  discussed.17  The  appellate  court  has  no  original  juris- 
diction. The  constitution  gives  a right  of  appeal  to  the  supreme  court 
in  all  criminal  matters  and  in  cases  in  which  a franchise  or  freehold  or 
the  validity  of  a statute  is  involved,  and  in  such  other  cases  as  may  be 
provided  by  law.18  The  practice  act  provides  for  a direct  appeal  to  the 
supreme  court  in  the  four  types  of  cases  just  specified  except  in  the 
case  of  misdemeanors  where  an  appeal  must  first  be  taken  to  the 
appellate  court.19  The  same  act  also  provides  for  a direct  appeal  in 
cases  involving  the  construction  of  the  constitution,  in  cases  in  which 
the  validity  of  a municipal  ordinance  is  involved  and  the  trial  judge 
certifies  that  in  his  opinion  the  public  interest  so  requires,  in  cases  re- 
lating to  revenue,  and  in  cases  in  which  the  state  is  interested  as  a 
party  or  otherwise.20  Other  statutes  establish  a direct  appeal  to  the 
supreme  court  from  the  county  and  circuit  courts  in  various  statutory 
proceedings,  such  as  eminent  domain  cases,  drainage  matters,  election 
contests,  cases  arising  under  the  workmen’s  compensation  act,  and 
appeals  from  the  circuit  court  of  Sangamon  county  in  review  of  the 

17  See  page  742. 

18  Constitution,  Art.  VI,  Sec.  11. 

19  Hurd’s  Revised  Statutes,  Chap.  110,  Sec.  118. 

20  Hurd’s  Revised  Statutes,  Chap.  110,  Sec.  118. 


761 


decisions  of  the  public  utilities  commission.  In  all  other  cases  appeals 
must  be  taken  to  the  appellate  court.  The  decision  of  the  appellate 
court  in  such  cases  is  final  unless  the  appellate  court  grants  a certificate 
of  importance  or  the  supreme  court  a writ  of  certiorari,  or  unless  the 
case  is  one  in  which  there  is  a constitutional  right  of  appeal  to  the  su- 
preme court. 

A brief  survey  of  the  opportunities  of  the  litigant  under  this  sys- 
tem of  appeals  may  prove  of  interest.  We  have  already  seen  that  in 
certain  classes  of  proceedings  the  practice  act  and  other  statutes  pro- 
vide for  a direct  appeal  to  the  supreme  court.  In  a criminal  case  above 
the  grade  of  misdemeanor,  an  eminent  domain  case,  or  a case  involving 
a franchise,  freehold,  or  the  validity  of' a statute,  the  litigant  may  ap- 
peal directly  from  the  circuit,  county,  or  city  court,  as  the  case  may  be. 
to  the  supreme  court.  In  such  proceedings  there  is  but  one  court  of 
review.  This  represents  the  simplest  type  of  case. 

Let  us  next  consider  cases  begun  in  the  county,  circuit  or  city 
courts  which  do  not  come  within  the  terms  of  a statute  providing  for 
a direct  appeal  to  the  supreme  court.  The  plaintiff  sues  the  defendant 
on  a simple  contract  claim  for  $900  in  one  of  these  courts.  In  such  a 
case  an  appeal  first  lies  to  the  appellate  court.  If  the  defeated  litigant 
in  the  appellate  court  is  able  to  secure  a certificate  of  importance,  the 
case  may  be  taken  from  the  appellate  court  to  the  supreme  court.  In 
such  event  the  case  is  reviewed  twice. 

Let  us  next  examine  the  situation  with  respect  to  certain  kinds  of 
cases  brought  in  justice  of  the  peace  courts.  Let  us  assume  the  plaint- 
iff sues  the  defendant  on  a claim  which  does  not  fall  within  any  statute 
permitting  a direct  appeal  to  the  supreme  court.  A simple  contract 
claim  for  $275  will  give  us  a case  directly  in  point.  From  the  decision 
of  the  justice  of  the  peace  in  such  a case  an  appeal  may  be  taken  either 
to  the  county  or  circuit  court,  or,  if  the  case  arises  in  a city  where 
there  is  a city  court,  to  the  city  court,  where  a trial  de  novo  is  had. 
From  any  of  these  courts  an  appeal  lies  to  the  appellate  court.  It  is 
conceivable  that  the  case  may  go  from  the  appellate  court  to  the  su- 
preme court  by  certificate  of  importance.  If  so,  the  case  is  passed 
upon  by  four  different  tribunals,  two  trial  courts  and  two  courts  of 
review. 

A similar  situation  arises  with  respect  to  probate  matters.  Ap- 
peals in  most  probate  matters  must  be  prosecuted  from  the  county  or 
probate  court  to  the  circuit  court,  where  the  case  is  tried  de  novo. 
From  the  decision  of  the  circuit  court  an  appeal  lies  to  the  appellate 
court,  unless  the  case  be  one  in  which  the  statute  gives  a direct  appeal 
to  the  supreme  court.  If  the  defeated  litigant  in  the  appellate  court  is 
able  to  secure  a certificate  of  importance  or  writ  of  certiorari,  he  may 
take  the  case  to  the  supreme  court.  Again  the  litigant  secures  a hear- 
ing in  four  different  courts. 


The  constituent  parts  of  the  judicial  organization.  It  is  now 

proposed  to  undertake  a somewhat  detailed  discussion,  from  the  point 
of  view  of  the  down-state  county,  of  the  actual  working  of  each  part  of 


762 


the  judicial  organization,  commencing  with  the  justice  of  the  peace 
courts.  An  attempt  will  then  be  made  to  picture  the  practical  working 
of  the  system  as  a whole.  The  discussion  of  the  down-state  situation 
will  be  followed  by  a somewhat  detailed  treatment  of  the  judicial 
situation  in  Chicago  and  Cook  County. 

The  justice  of  the  peace  courts.  There  are  approximately  2,900 
justices  of  the  peace  and  650  police  magistrates  in  the  State  of  Illinois. 
Under  the  statute  now  in  force,  each  town  in  counties  under  township 
organization  and  each  election  precinct  in  counties  not  under  township 
organization  elects  two  justices  of  the  peace.  They  are  entitled  to  one 
additional  justice  for  each  1,000  inhabitants  exceeding  2,000  inhabi- 
tants in  such  town  or  precinct,  with  a limit  of  five  justices  in  any  town 
or  precinct.21  In  towns,  cities  and  villages  incorporated  under  charters 
granted  by  special  acts  of  the  general  assembly  or  under  a general  act, 
there  may  also  be  elected  a police  magistrate.22 

Justices  of  the  peace  and  police  magistrates  now  have  jurisdiction 
in  criminal  actions  in  which  punishment  is  by  fine  only  and  does  not 
exceed  $300  and  in  a large  variety  of  civil  cases  where  the  amount 
claimed  does  not  exceed  $300.23  The  pecuniary  limit  of  their  juris- 
diction was  raised  from  $200  to  $300  in  1917. 24  Police  magistrates 
have  the  same  jurisdiction  as  justices  of  the  peace.25  Civil  cases  may 
thus  be  brought  before  a police  magistrate,  and  criminal  cases  before  a 
justice  of  the  peace.  In  most  communities  it  is  the  practice  of  the  city 
or  village  police  department  to  prosecute  its  cases  before  the  police 
magistrate,  the  theory  being  that  this  officer  is  elected  to  handle  police 
cases.  But  there  is  no  hard  and  fast  practice.  In  communities  with  a 
police  magistrate  large  numbers  of  offenders  are  sometimes  prosecuted 
before  justices  of  the  peace.  Police  magistrates,  on  the  other  hand, 
sometimes  develop  a considerable  amount  of  civil  business. 

There  is  a surplusage  of  justices  of  the  peace  in  practically  all 
communities.  Under  the  statute  referred  to  above,  a town  or  election 
precinct  of  5,000  is  entitled  to  five  justices  of  the  peace.  Larger  towns 
or  precincts  are  entitled  to  no  more.  The  result  is  that  a community 
of  5,000  may  have  the  same  number  of  justices  as  a community  of 
50,000.  A somewhat  careful  examination  was  made  of  the  amount  of 
justice  of  the  peace  business  in  three  cities  located  respectively  in  the 
northern,  central  and  southern  parts  of  the  State.  The  populations  of 
these  cities  are,  roughly  speaking,  50,000,  40,000  and  12,000.  Each  has 
five  justices  of  the  peace,  and  a police  magistrate.  In  each  city  the 
business  was  found  concentrated  in  the  hands  of  two  or  three  men. 
Although  the  maximum  number  of  justices  permitted  by  law  has  no 
relation  to  the  amount  of  business  in  the  community,  still  it  was  found 
in  the  largest  of  these  cities  that  the  greater  part  of  the  business  was 
in  the  hands  of  three  men,  and  that  there  was  just  about  enough  work 
in  that  city  to  keep  two  justices  busy  at  full  time. 


21  Hurd’s  Revised  Statutes,  Chap.  79,  Sec.  1. 

22  Hurd’s  Revised  Statutes,  Chap.  24,  Secs.  192,  249. 

23  Hurd’s  Revised  Statutes,  Chap.  79,  Sec.  16. 

24  Hurd’s  Revised  Statutes,  Chap.  79,  Sec.  16. 

25  Hard’s  Revised  Statutes,  Chap.  24,  Sec.  192. 


763 


Several  communities  in  the  State  have  not  elected  the  full  number 
of  justices  to  which  they  are  entitled,  and  now  and  then  a justice  is 
elected  but  fails  to  qualify. 

The  justice  of  the  peace  courts  are  quite  generally  used  in  that 
class  of  cases  which  come  within  the  limits  of  the  justice’s  jurisdiction. 
In  some  instances  litigants  try  their  own  cases.  In  a very  large  num- 
ber of  cases  there  is  no  contest  in  the  justice’s  court;  judgment  is  by 
default  or  the  parties  settle  the  case.  Defaults  are  particularly  nu- 
merous in  cases  where  the  amount  involved  is  trifling.  They  are  also 
not  uncommon  in  cases  involving  larger  amounts  where  the  defendant 
is  a corporation  and  proposes  to  take  an  appeal.  Of  three  justices 
questioned  on  this  subject,  one  in  each  of  the  communities  referred  to 
in  the  preceding  paragraph,  the  first  placed  the  number  of  defaults  at 
80  per  cent,  the  second  at  90  per  cent  and  the  third  at  from  80  per  cent 
to  90  per  cent.  In  contested  cases  demands  for  jury  trials  vary.  In 
some  justice’s  courts  they  are  relatively  infrequent.  In  others  they  are 
the  usual  thing.  The  jury  of  six  is  the  normal  jury  in  such  a case,  a 
jury  of  twelve  being  unusual.  Such  juries  are  “pick-up”  juries. 
Changes  of  venue  are  quite  frequent. 

The  justice  of  the  peace  system  can  hardly  be  said  to  work  satis- 
factorily. The  fee  system  is  the  basis  of  compensation.  The  justice  is 
rarely  a lawyer.  He  is  sometimes  illiterate  and  totally  ignorant  of  the 
law.  Unscrupulous  men  often  succeed  in  getting  elected.  The  attor- 
ney for  the  plaintiff  picks  the  justice.  The  defendant  is  necessarily 
placed  in  an  unfavorable  position  at  the  outset.  The  saying  is  that  the 
plaintiff  always  gets  judgment.  As  a matter  of  fact,  some  justices 
rarely  give  any  other  judgment.  Attorneys  having  a large  collection 
practice  frequently  bring  all  their  suits  before  the  same  justice.  He  is 
expected  to  give  judgment  for  the  plaintiff  as  a matter  of  course.  Jus- 
tices sometimes  compete  for  certain  types  of  business  by  entering  into 
agreements  to  share  or  discount  fees.  Justices  often  act  as  collection 
agents  themselves,  using  their  position  to  obtain  unfair  advantage  over 
the  debtor.  If  necessary  to  sue,  the  justice  in  such  cases  often  brings 
suit  himself,  acting  as  attorney  and  judge  and  deciding  the  case  unless 
the  defendant  takes  a change  of  venue.  It  is  needless  to  say  that  the 
defendant’s  chances  of  winning  in  such  a proceeding  are  slight.  Un- 
scrupulous justices  and  constables  sometimes  join  hands  in  fleecing 
innocent  victims  and  dividing  the  loot  between  them.  Practices  of  this 
character  are  bound  to  occur  so  long  as  the  fee  system  is  the  basis  of 
compensation. 

The  jurisdiction  of  the  justice  of  the  peace  extends  throughout 
the  county.  A plaintiff  may  bring  suit  before  any  justice  in  the  county. 
The  old  familiar  practice  of  suing  a defendant  in  that  part  of  the 
county  most  inaccessible  to  him  is  still  resorted  to.  When  this  is  done, 
the  case  is  often  set  for  trial  at  an  early  morning  hour ; if  the  defendant 
takes  the  trouble  to  be  present,  the  plaintiff  invariably  secures  a con- 
tinuance. 

The  justice  of  the  peace  system  seems  to  work  better  in  the  admin- 
istration of  petty  criminal  business.  There  seems  also  to  be  little  com- 
plaint of  the  justice  of  the  peace  as  a committing  magistrate,  although 


764 


even  here  difficulties  sometimes  result  from  his  ignorance  of  the  law. 
In  many  justices’  courts  preliminary  examinations  take  place  without 
the  presence  of  the  state’s  attorney  or  his  representative.  The  more 
careful  justices  notify  the  state’s  attorney’s  office  in  such  cases  and  give 
him  an  opportunity  to  be  present. 

Appeals  from  the  justices’  courts  are  quite  common.  If  the  amount 
involved  is  insignificant  a defeated  plaintiff  will  be  disposed  to  let  the 
matter  drop.  In  such  a case  a defeated  defendant  will,  however,  often 
take  an  appeal  either  to  delay  payment  or  to  make  it  unprofitable  for 
his  opponent  to  pursue  the  matter  further.  If  any  considerable  sum  is 
at  stake,  neither  a defeated  plaintiff  nor  a defeated  defendant  is  likely 
to  be  satisfied  with  the  decision  of  a justice  of  the  peace.  Railway  and 
corporation  attorneys  do  not  ordinarily  contest  suits  brought  against 
their  clients  in  justices’  courts.  They  content  themselves  with  watching 
the  progress  of  the  case,  following  an  adverse  judgment  with  an  appeal 
to  the  circuit,  county  or  city  court  where  the  issue  is  really  fought  out. 
If  any  substantial  sum  is  involved,  a suit  in  a justice  of  the  peace  court 
is,  as  a practical  matter,  a mere  superfluity,  entailing  needless  expense 
and  labor. 

The  preceding  discussion  is  intended  as  a criticism,  not  of  the 
justice  of  the  peace,  but  of  the  justice  of  the  peace  system.  There  are 
many  honest  and  capable  justices  of  the  peace  and  police  magistrates. 
But  the  system  is  fundamentally  vicious.  The  number  of  justices  is 
far  in  excess  of  the  number  required  to  transact  the  business  to  be 
done.  The  fee  system  is  the  basis  of  compensation.  Under  this  system 
it  is  impossible  for  a fair  justice  in  a small  community  to  make  any 
substantial  sum  out  of  his  office.  The  great  difficulty  with  such  a sys- 
tem of  compensation  is,  of  course,  the  temptation  which  it  offers  to 
justices  to  increase  their  receipts  by  unscrupulous  methods. 

The  evils  of  the  justice  of  the  peace  system  are,  of  course,  much 
more  keenly  felt  in  urban  communities  than  in  rural  communities. 

The  justice  of  the  peace  situation  in  Cook  County  outside  of  the 
city  of  Chicago  presents  substantially  the  same  problems  as  those  al- 
ready pointed  out.  This  phase  of  the  subject  is,  however,  given  more 
detailed  treatment  in  the  discussion  of  the  judicial  situation  in  Cook 
County. 

County  and  probate  courts.  Each  county  in  the  state  has  a 
county  court.  This  court  has  exclusive  original  jurisdiction  in  all  pro- 
bate matters,  in  all  counties  except  those  in  which  probate  courts  have 
been  established.26  In  addition,  it  has,  under  the  constitution,  juris- 
diction in  tax  matters.  By  statute  it  is  given  exclusive  jurisdiction  in 
the  county  in  insane  cases,  insolvent  debtors  proceedings,  and  assign- 
ments for  the  benefit  of  creditors.  It  has  concurrent  jurisdic- 
tion with  the  circuit  court  in  appeals  from  justices  of  the  peace, 
in  eminent  domain  cases,  contests  of  election  for  certain  offices,  drain- 
age matters,  and  other  statutory  proceedings.  The  county  court  has 
concurrent  jurisdiction  with  the  circuit  court  in  that  class  of  cases  in 
which  justices  of  the  peace  have  jurisdiction  where  the  amount  involved 

26  Probate  courts  have  been  established  in  the  following  counties:  Cook, 

Kane,  La  Salle,  Madison,  Peoria,  Rock  Island,  Sangamon,  St.  Clair,  Vermilion 
and  Will. 


765 


does  not  exceed  $1,000.  It  also  has  concurrent  jurisdiction  with  the 
circuit  court  in  non-indictable  offenses  where  the  punishment  is  not  im- 
prisonment in  the  penitentiary  or  death.  As  already  explained,  the 
phrase  “non-indictable  offenses”  is  used  in  this  discussion  to  designate 
offenses  which  may  under  the  constitution  be  prosecuted  without  in- 
dictment, altouhgh  as  a matter  such  offenses  are  tried  in  the  circuit 
court  only  on  indictment. 

In  the  cities  of  Chicago,  East  St.  Louis,  Springfield,  Galesburg, 
Danville,  Cairo,  Rockford,  Bloomington,  Freeport  and  Peoria,  which 
have  adopted  the  city  election  commissioner’s  act,  the  county  judge 
appoints  election  commissioners  and  has  general  supervision  over  the 
election  machinery. 

In  counties  in  which  probate  courts  have  not  been  established  the 
work  of  the  county  court  consists  mostly  of  probate  matters.  The  law 
jurisdiction  of  the  county  court  in  cases  where  it  has  concurrent  juris- 
diction with  the  circuit  court  has  been  but  little  developed  in  most 
counties.  In  many  counties  large  numbers  of  misdemeanors  are  certi- 
fied to  the  county  court  by  the  circuit  court.  The  state’s  attorney  may 
also  proceed  against  misdemeanants  in  the  county  court  by  information. 
In  consequence,  the  non-probate  work  of  the  rural  county  court  is  con- 
fined largely_to  misdemeanors  and  to  the  comparatively  few  classes  of 
cases  in  which  the  county  court  is  given  exclusive  original  jurisdiction. 

The  failure  of  attorneys  to  use  the  county  court  in  cases  where  it 
has  concurrent  jurisdiction  with  the  circuit  court  has  been  due  largely 
to  the  fact  that  county  judges  are  frequently  less  able  lawyers  than  cir- 
cuit judges.  In  fact,  until  recently  many  county  judges  were  not 
lawyers.  The  office  carries  a small  salary  and,  for  that  reason,  is  not 
particularly  attractive  to  the  more  experienced  members  of  the  bar. 
The  salaries  of  county  judges,  which  are  fixed  in  each  county  by  the 
county  board,  range  from  $3,500  a year  in  Sangamon  and  Will  counties 
to  $300  a year  in  Hardin  county.  One-half  of  the  county  judges  do  not 
receive  over  $1,500  a year.28  Furthermore,  lawyers  are  in  the  habit  of 
filing  their  suits  in  the  circuit  court.  Most  of  their  trial  work  is  in  that 
court,  and  it  is  easier  to  handle  all  of  their  cases  in  one  court  than  to 
divide  them  between  two  courts.  Little,  if  anything,  is  to  be  gained 
from  the  standpoint  of  time  by  bringing  a jury  case  in  the  county  court. 
In  the  first  place,  the  county  court  may  have  fewer  law  terms  than  the 
circuit  court.  Again,  so  few  jury  cases  are  filed  in  some  county  courts 
that  the  judge  may  deem  it  advisable  to  let  them  accumulate  before 
calling  a jury.  In  a few  instances,  owing  largely  to  the  personality  of 
the  judge,  the  county  court  has  developed  a fair  amount  of  civil  busi- 
ness. 

The  county  court  situation  was  analyzed  in  several  down-state 
counties  which  do  not  have  probate  courts.  Three  of  these  were  min- 
ing counties  with  populations  of  approximately  60,000,  55,000  and 

40.000.  Three  were  agricultural  counties  of  about  23,000,  22,000  and 

15.000.  In  each  county  studied,  the  bulk  of  the  work  of  the  court  con- 
sists of  probate  matters.  Such  matters  arise  almost  daily  and  the  court 
is  continuously  open  in  the  sense  that  the  judge  must  be  prepared  to 

28  For  table  giving  salaries  of  county  judges  see  appendix,  page  892. 


766 


handle  them  as  they  come  up.  The  law  work  of  these  courts  is  not 
heavy.  The  number  of  civil  cases  is  small.  Only  one  of  the  county 
courts  studied  had  developed  any  appreciable  amount  of  civil  business. 
There  is  more  criminal  work,  misdemeanors  being  certified  to  the 
county  court  by  the  circuit  court.  This  work  has,  however,  fallen  off 
since  prohibition  went  into  effect.  In  one  of  these  courts  it  was  form- 
erly not  uncommon  to  have  100  misdemeanors  on  the  calendar  of  a law 
term.  At  the  last  law  term  there  were  not  over  ten  criminal  cases.  The 
number  of  law  terms  in  the  different  counties  is  regulated  by  statute.29 
In  the  county  of  60,000  the  court  holds  three  law  terms  a year,  each 
term  lasting  about  a week.  In  the  county  of  33,000,  the  court  holds  four 
law  terms  of  about  two  weeks  each.  In  the  agricultural  county  of  about 
23,000  the  law  work  does  not  total  two  weeks  a year.  In  the  county 
of  22,000,  it  does  not  ordinarily  occupy  the  judge  over  a week.  In 
fact,  this  court  had  no  cases  on  its  law  calendar  at  its  last  term. 

In  the  largest  mining  county,  the  duties  of  the  judge  take  up  over 
one-half  of  his  time.  In  the  other  two  mining  counties,  he  is  busy  from 
one-third  to  one-half  of  the  time.  In  the  agricultural  counties,  his 
official  duties  take  up  but  a small  portion  of  his  time.  Many  county 
judges  are  able  to  devote  the  greater  part  of  their  time  to  private  prac- 
tice. 

In  nine  down  state  counties  there  is  a probate  court  in  addition  to 
the  county  court.30  These  courts  are  established  in  all  counties  having  a 
population  of  70,000  or  more.31  The  effect  of  the  establishment  of  a 
probate  court  is  to  remove  the  following  matters  from  the  jurisdiction 
of  the  county  court  and  place  them  in  the  hands  of  a separate  court : 
Probate  matters,  the  settlement  of  estates  of  deceased  persons,  the  ap- 
pointment of  guardians  and  conservators  and  the  settlement  of  their 
accounts,  all  matters  relating  to  apprentices,  and  cases  of  the  sales  of 
real  estate  of  deceased  persons  for  the  payment  of  debts.32  The  salary 
of  the  probate  judge  is  fixed  by  the  county  board.  These  salaries  range 
from  $2,200  in  Madison  county  to  $3,500  in  Sangamon,  La  Salle  and 
Will  counties.  A statement  showing  the  salaries  of  the  various  pro- 
bate judges  is  printed  in  the  appendix  on  page 

Information  was  obtained  as  to  the  amount  of  business  in  the 
county  and  probate  courts  in  four  of  the  nine  counties  in  which 
separate  probate  courts  have  been  established.  In  one  of  them  both 
the  county  and  probate  judges  have  a large  amount  of  spare  time.  One 
judge  could  handle  the  work  of  both  courts,  and  still  have  much  time 
available  for  private  practice.  In  another  county  both  judges  are  in  a 
position  to  devote  much  time  to  outside  work.  The  third  county  pre- 
sents the  same  situation.  One  judge  could  handle  the  work  of  the  two 
courts  in  both  of  these  counties.  In  the  fourth  county  both  judges  are 
kept  fairly  busy.  It  is  doubtful  whether  in  this  county  one  judge  could 
handle  the  work  of  the  two  courts. 


29  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  96-198. 

30  These  counties  are:  Kane,  ha  Salle,  Madison,  Peoria,  Rock  Island,  Sanga- 

mon, St.  Clair,  Vermilion,  and  Will. 

31  Hurd’s  ReArised  Statutes,  Chap.  37,  Sec.  216. 

32  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  220. 


7G7 

Appeals  from  the  final  orders,  judgments  and  decrees  of  the  pro- 
bate court  (and  of  the  county  court  in  probate  matters)  are  taken  to 
the  circuit  court  of  the  county  in  all  cases  except  in  proceedings  of 
executors,  administrators,  guardians  and  conservators  for  the  sale  of 
real  estate.  In  such  proceedings  appeals  are  taken  to  the  appellate  or 
supreme  court.  In  appeal's  to  the  circuit  court  there  is  a trial  de  novo. 
The  number  of  trials  de  novo  in  down-state  counties  is  not  great.  In 
one  of  the  larger  counties  there  were  only  five  appeals  from  the  peo- 
bate  court  to  the  circuit  court  in  1918. 

The  situation  with  respect  to  testamentary  trusts  has  already  been 
discussed.33  The  supreme  court  has  held  that,  under  the  present  con- 
stitution, probate  courts  may  not,  by  statute,  be  given  jurisdiction  over 
testamentary  trusts.  The  result  is  that  such  trusts  must  be  adminis- 
tered by  the  circuit  court.  Testamentary  trusts  are  comparatively  rare 
in  many  down  state  counties.  In  several  instances  they  have  been 
handled  in  probate  courts,  the  interested  parties  making  no  objection 
to  such  procedure. 

City  Courts . The  city  court  situation  in  Illinois  has  been 
touched  upon  briefly  in  the  discussion  of  the  court  geography  of  Illi- 
nois.34 There  are  twenty-seven  of  these  courts  in  the  state.  Five  of 
them  are  located  in  county  seats.  Under  the  present  statute  a city 
court  may  be  organized  in  any  city  having  a population  of  at  least  3,000, 
when  the  common  council  or  city  council  shall  adopt  an  ordinance  or 
resolution  to  submit  the  question  whether  such  a court  shall  be  estab- 
lished to  the  qualified  voters  of  the  city,  and  two-thirds  of  the  voters 
at  such  election  shall  be  in  favor  of  the  establishment  of  the  court.35 
If  the  city  has  a population  of  less  than  5,000  the  salary  of  the  city 
judge  is  paid  out  of  the  city  treasurer;  if  more  than  5,000,  it  is  paid 
from  the  state  treasury.  The  salaries  of  all  the  city  judges,  with  the 
exception  of  that  of  the  city  judge  at  Zion  City,  are  now  paid  from 
the  state  treasury.  In  1919  $55,500  will  be  paid  from  the  state 
treasury  for  the  salaries  of  city  court  judges. 

A table  showing  the  names  of  the  various  city  courts,  the  dates 
of  their  organization,  and  the  salaries  of  the  judges  is  printed  in  the 
appendix  on  page  893. 

During  the  time  available  for  gathering  material  for  this  bulletin 
it  has  been  impossible  to  make  a study  of  each  of  the  twenty-seven 
city  courts.  Data  has,  however,  been  obtained  as  to  fourteen.  Of 
this  number  only  four  can  fairly  be  said  to  handle  a sufficient  amount 
of  business  to  justify  the  expense  of  their  maintenance.  Of  the  ten 
remaining  courts,  four  are  practically  unused.  Of  these  four,  three 
are  at  county  seatis.  The  other  six  courts  do  a very  small  amount  of 
work. 

Of  the  eight  city  courts  in  the  mining  region  in  the  southern 
part  of  the  state  only  one,  that  at  Duquoin,  has  been  a success.  That 
court,  situated  in  the  city  which  contains  practically  all  the  lawyers  of 
Perry  county  and  presided  over  by  an  able  judge,  handles  approxi- 


33  See  page  752. 

34  See  page  756. 

35  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  260. 


768 


ately  one-half  of  the  judicial  business  of  the  county.  The  remaining 
seven  courts  are  either  unused  or  are  used  only  to  a slight  extent. 

Of  the  fourteen  courts  studied,  several  do  not  exercise  any  crimin- 
al jurisdiction  whatever.  In  some  of  them  there  is  an  occasional  prose- 
cution of  some  person  who  has  committed  a crime  within  the  city.  Most 
offenders  who  commit  crimes  in  these  cities  are  prosecuted  in  the 
circuit  court.  In  only  one  or  two  instances  has  a city  court  devel- 
oped any  appreciable  criminal  jurisdiction. 

These  city  courts  as  such  have,  in  most  instances,  failed  to  relieve 
the  circuit  court  of  any  considerable  amount  of  work.  City  judges 
have,  however,  frequently  held  circuit  court  under  the  provisions  of 
the  statute  permitting  the  interchange  of  circuit  and  city  judges.36 

The  extent  to  which  city  judges  have  held  courts  in  Chicago 
is  indicated  in  the  table  on  p.  894  of  the  appendix.  Several  city  judges 
devote  practically  all  of  their  time  to  private  practice. 

City  courts  draw  their  jurors  from  the  entire  county.  Many  city 
judges  have,  however,  adopted  the  policy  of  excusing  jurors  who  re- 
side in  the  more  remote  parts  of  the  county. 

Many  reasons  have  been  assigned  for  the  non-employment  of 
these  city  courts.  Their  jurisdiction  is  confined  to  narrow  limits. 
Their  process  does  not  run  beyond  the  city  limits.  Their  criminal 
jurisdiction  extends  only  to  crimes  committed  within  the  city.  Many 
questions  have  arisen  as  to  the  extent  of  their  jurisdiction.  The  city 
judges  have  not  as  a general  rule  been  as  able  lawyers  as  circuit 
judges,  and  attorneys  have  been  reluctant  to  bring  cases  in  their 
courts.  In  a few  cases  in  which  the  city  courts  have  developed  any 
substantial  amount  of  business,  the  personality  of  the  judge  has  been 
a controlling  factor.  Prompter  jury  trials  are  ordinarily  not  secured 
in  a city  court  since  such  a small  number  of  jury  cases  are  filed  in 
these  courts  that  considerable  time  may  elapse  before  the  judge  feels 
himself  warranted  in  calling  a jury. 

These  courts  have  been  established  for  various  reasons.  Before 
the  workmen’s  compensation  act  was  made  compulsory,  the  circuit 
courts  were  badly  congested  in  many  counties  and  attorneys  felt  that 
the  establishment  of  a city  court  would  enable  them  to  get  prompter 
trials.  In  the  case  of  cities  which  were  not  county  seats,  there  was 
also  the  desire  to  save  attorneys  and  litigants  the  inconvenience  and 
expense  of  going  to  the  county  seat  to  try  their  cases.  Political  con- 
siderations have  also  played  an  important  part.  Attorneys  desirous  of 
being  elected  city  judge  have  launched  some  of  the  movements  for  the 
establishment  of  city  courts. 

The  city  court  at  Chicago  Heights  will  be  taken  up  in  the  dis- 
cussion of  the  judicial  situation  in  Chicago  and  Cook  County. 

Circuit  courts.  The  circuit  court  is  the  important  trial  court 
By  the  constitution  it  is  given  “original  jurisdiction  of  all  causes  in 
law  and  equity  and  such  appellate  jurisdiction  as  is  or  may  be  pro- 
vided by  law”.37  It  has  been  given  additional  jurisdiction  in  numerous 


36  Hurd’s  Revised  Statutes.  Chap.  37,  Sec.  245. 

37  Constitution,  Art.  VI.,  Sec.  12. 


769 


statutory  proceedings.  Any  case,  civil  or  criminal,  which  may  be 
brought  before  a justice  of  the  peace,  or  in  a city  court,  may  also  be 
brought  in  the  circuit  court.  It  has  concurrent  jurisdiction  with  the 
county  court  in  that  class  of  cases  in  which  justices  of  the  peace 
have  jurisdiction  where  the  amount  involved  is  not  greater  than 
1 ,000.  Many  statutory  proceedings  which  may  be  brought  in  the 
county  court  may  also  be  brought  in  the  circuit  court.  The  circuit 
court  has  no  original  jurisdiction  in  probate  matters. 

Exclusive  of  Cook  County,  the  state  is  divided  into  seventeen 
judicial  circuits.  The  geography  of  these  circuits  has  already  been  dis- 
cussed on  page  756.  Three  judges  are  elected  in  each  circuit  for  a 
term  of  six  years.  From  the  judges  thus  elected  and  from  the  twenty 
circuit  and  twenty  superior  court  judges  in  Cook  County,  the  supreme 
court  assigns  judges  to  the  appellate  court.  Eighteen  judges  are  now 
performing  appellate  court  duties,  nine  being  assigned  to  the  first 
appellate  court  district  and  three  to  each  of  the  other  appellate  dis- 
tricts. The  nine  judges  in  the  first  district  have  been  taken  from  the 
circuit  and  superior  courts  of  Cook  County.  The  judges  assigned 
to  the  second,  third  and  fourth  appellate  districts  have  been  taken 
from  down  state  circuits,  and  hold  circuit  court  between  sessions  of 
the  appellate  court. 

The  constitution  requires  two  or  more  terms  of  circuit  court 
to  be  held  each  year  in  each  county.38  By  statute  detailed  provisions 
is  made  concerning  the  time  of  holding  the  terms  of  circuit  court  and 
of  the  calling  of  juries  in  the  several  down  state  judicial  circuits.39 
The  circuit  judges  hold  court  in  . such  counties  as  they  may  agree 
upon,  or  in  case  of  disagreement,  in  such  counties  as  the  chief  justice 
of  the  supreme  court  may  assign  to  them.40  Circuit  judges  of  a circuit 
may  upon  request  to  the  supreme  court  have  other  judges  assigned  to 
assist  them.41  They  may  exchange  with  city  judges  and  interchange 
with  each  other.42 

Before  the  workmen’s  compensation  act  became  compulsory,  the 
circuit  courts  in  many  of  the  industrial  and  mining  counties  were 
badly  congested.  The  industrial  commission  has  relieved  these  courts 
of  much  of  this  congestion. 

In  the  short  time  available  for  the  preparation  of  this  bulletin 
it  has  been  possible  to  make  a study  of  only  eight  of  the  seventeen 
circuits.  The  circuits  examined  are  located  in  different  parts  of  the 
state  and  contain  agricultural,  mining,  and  industrial  counties.  There 
is  a considerable  variation  in  the  amount  of  judicial  work  in  these 
eight  circuits.  In  three  of  them  the  amount  of  work  bears  just  about 
the  proper  relation  to  the  number  of  judges.  Each  of  these  three 
circuits  has  plenty  of  work  to  keep  all  three  judges  busy  within  the 
circuit.  One  of  these  circuits  is  represented  on  the  appellate  bench, 
but  the  condition  of  business  in  this  circuit  is  such  that  a judge  can- 
not well  be  spared  for  this  work. 

38  Constitution,  Art.  VI.,  Sec.  12. 

39  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  78  et.  seq. 

40  Jones  and  Addington’s  Illinois  Statutes  Annotated,  Ch.  37,  Sec.  3067. 

41  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  82i. 

42  Hurd’s  Revised  Statutes,  Chap.  37,  Secs.  57,  245, 


770 


Three  other  circuits  were  found  to  have  a smaller  amount  of  busi- 
ness. Conservatively  estimated,  each  of  these  circuits  has  enough 
work  to  occupy  the  full  time  of  two  judges  and  part  of  the  time  of  the 
third.  The  third  judge  has  a large  portion  of  time  available  for  ap- 
pellate court  work. 

In  the  seventh  circuit  studied  the  work  is  badly  behind.  One  of 
the  judges  of  this  circuit  is  sitting  on  the  appellate  bench.  Another 
has  been  in  ill  health  and  is  unable  to  give  full  time  to  his  work.  The 
third  judge  is  unable  to  keep  the  work  of  the  circuit  up  to  date.  In  one 
of  the  counties  in  this  circuit  the  work  of  the  court  is  some  six  hun- 
dred cases  behind. 

In  the  last  circuit  studied  a single  judge  is  doing  the  greater  part 
of  the  work. 

An  examination  was  also  made  of  the  status  of  judicial  business 
in  the  courts  of  several  of  the  counties  in  the  circuits  studied.  Three 
of  these  counties  are  mining  counties  in  the  two  busiest  circuits  dis- 
cussed. In  each  of  these  courts  there  are  three  or  four  terms  a year, 
each  term  lasting  several  weeks.  Each  court  is  held  by  a resident  judge, 
who  does  not  adjourn  court  between  terms.  The  court  is  kept  open 
practically  all  of  the  time.  The  judge,  while  holding  court  in  other 
counties,  returns  at  frequent  intervals  to  hear  motions,  handle  chan- 
cery matters,  or  perhaps  hear  a jury  case.  Each  of  these  courts  has  a 
large  number  of  cases  on  its  calendar.  In  fact  it  might  take  from  six 
months  to  a year  to  dispose  of  all  the  cases  now  on  the  calendar  of 
the  circuit  courts  in  two  of  these  counties.  Litigants  are  not,  however, 
subjected  to  serious  delays.  Any  attorney  desiring  a prompt  trial 
may  ordinarily  get  his  case  advanced  on  the  calendar. 

The  amount  of  business  in  three  agricultural  counties  ranging  in 
population  from  15,000  to  25,000  was  also  examined.  In  one  of  these 
counties  the  circuit  court  holds  three  terms,  aggregating  ten  or  twelve 
weeks  a year.  The  other  two  have  two  terms  each,  each  term  lasting 
about  two  weeks. 

The  circuit  court  of  Sangamon  county  in  the  seventh  circuit  is 
abnormal  to  the  extent  that  all  appeals  from  the  orders  of  the  public 
utilities  commission  are  taken  to  it.  This  adds  a considerable  burden 
to  the  business  of  the  court,  but  not  enough  to  congest  its  work. 

From  the  preceding  discussion  it  would  appear  that  the  judicial 
business  of  the  state  is  not  evenly  distributed.  Some  of  the  circuits 
cannot  well  spare  judges  for  appellate  court  work.  In  others  judges 
can  be  assigned  to  the  appellate  bench  without  in  any  manner  inter- 
fering with  the  work  of  the  circuit.  Many  down-state  circuit  judges 
have  held  court  in  the  circuit  and  superior  courts  of  Cook  County. 
The  extent  to  which  this  has  been  done  is  set  forth  in  the  tables  on 
p.  894  of  the  appendix.  Dissatisfaction  has  been  expressed  in  certain 
down-state  communities  because  of  the  large  amount  of  time  spent 
by  their  judges  in  Chicago  courts. 

A word  should  be  said  with  respect  to  masters  in  chancery.  The 
extent  to  which  masters  are  used  in  the  different  circuit  courts  varies. 
In  two  of  the  circuits  studied  it  is  the  practice  of  the  judges  to  refer 
little  to  masters.  Only  when  the  case  involves  a complicated  account- 


m 


ing  is  a reference  made.  In  other  circuits  it  is  the  policy  to  refer 
practically  all  matters  to  a master  in  chancery.  Masters  receive  fees 
as  compensation,  and  the  amounts  earned  by  them  vary  according  to 
the  amount  of  business  in  the  circuit,  and  the  policy  of  the  court  in 
referring  matters  to  them.  In  several  counties  the  masters  in  chan- 
cery are  not  lawyers. 


Summary  of  the  down-state  judicial  organization.  It  may  be 

of  interest  to  make  a brief  summary  of  the  judicial  organization  in  the 
different  types  of  counties,  based  on  a study  of  eight  of  the  seventeen 
judicial  circuits. 

In  counties  of  the  first  type  we  find  the  justice  of  the  peace  courts, 
the  county  court  and  the  circuit  court.  We  find  the  justice’s  courts 
handling  petty  matters,  appeals  being  taken  in  cases  involving  sub- 
stantial sums.  Such  appeals  are  ordinarily  taken  to  the  circuit  court. 
Sometimes  appeals  are  taken  from  justice’s  courts  for  the  purpose  of 
delay.  In  such  case  the  appeal  will  be  taken  to  the  court  which  will 
best  serve  that  purpose.  The  work  of  the  county  court  in  this  type 
of  county  consists  mostly  of  probate  matters.  The  court  is  kept  open 
continuously  for  business  of  this  character.  The  civil  common  law 
jurisdiction  of  the  county  court  is  little  used.  In  a few  county 
courts,  owing  largely  to  the  personality  of  the  judge,  a considerable 
amount  of  civil  business  is  handled.  The  law  business  of  the  county 
court  is  mostly  criminal.  Misdemeanors  may  be  certified  to  it  by  the 
circuit  court.  The  state’s  attorney  may  also  proceed  against  misde- 
meanants in  the  county  court  by  information. 

The  circuit  court  is  the  important  trial  court.  It  handles  all 
equity  work,  most  civil  common  law  cases,  and  the  more  important 
criminal  cases.  Appeals  from  the  county  court  in  probate  matters 
go  to  the  circuit  court  in  practically  all  cases.  In  the  circuit  court  a trial 
de  novo  is  had.  As  a practical  matter,  such  trials  de  novo  are  not  num- 
erous in  most  down  state  counties. 

The  amount  of  time  required  for  the  transaction  of  judicial 
business  in  many  of  the  counties  of  this  type  is  not  large.  In  several 
of  them  the  business  of  the  circuit  court,  if  transacted  continuously, 
could  be  disposed  of  in  from  four  to  six  weeks.  Similarly,  the  non- 
probate work  of  some  of  the  county  courts  in  this  type  of  county 
does  not  consume  over  two  weeks  of  the  time  of  the  judge.  Probate 
matters  come  before  the  court  day  by  day, 'but  in  many  counties 
the  total  amount  of  such  business,  if  transacted  continuously  by  the 
judge,  would  not  keep  him  busy  over  two  or  three  days  a month.  It 
is  safe  to  say  that  the  total  business  of  the  county  and  circuit  courts 
in  some  of  these  counties  would  not  take  over  one-third  of  the  time  of 
one  judge. 

In  the  second  type  of  down-state  county  we  have  one  or  more 
city  courts  in  addition  to  the  justice  of  the  peace  courts,  the  county 
court,  and  the  circuit  court.  The  city  courts  are  in  many  cities  prac- 
tically unused.  In  only  a few  cities  are  they  employed  to  any  ap- 


m 


preciable  extent.  Therefore,  in  most  counties  of  this  type  the  city 
court,  as  such,  is  not  an  important  factor  in  the  judicial  situation.  As 
in  the  first  type  of  county,  the  work  of  the  county  court  is  confined 
chiefly  to  probate  matters.  As  a general  proposition,  this  court  has 
not  developed  any  jurisdiction  in  that  class  of  cases  in  which  it  has 
concurrent  jurisdiction  with  the  circuit  court.  The  city  court  judges 
sometimes  assist  the  circuit  judge  by  holding  circuit  court  under  the 
provisions  of  the  statute  permitting  city  judges  to  interchange  with 
circuit  judges. 

In  some  of  the  counties  of  this  type  one  judge  might  possibly 
handle  the  work  of  the  county,  circuit  and  city  courts.  Most  of  them 
would  probably  require  more  than  one  judge  to  do  the  work  of  the 
three  courts. 

In  the  third  type  of  county  we  find  a probate  court  in  addition 
to  the  justice’s  courts,  the  county  court,  the  circuit  court,  and  one  or 
more  city  courts.  The  division  of  work  in  this  type  of  county  differs 
from  that  in  the  preceding  type  in  that  the  probate  work  is  here  taken 
from  the  county  court  and  placed  in  the  hands  of  a separate  court. 
In  several  of  the  counties  of  this  type  one  judge  could  undoubtedly 
handle  the  work  of  both  the  county  and  probate  courts. 

The  fourth  type  of  county  is  like  the  third,  except  that  it  con- 
tains no  city  court.  In  other  words,  it  has  the  justice  of  the  peace 
courts,  the  county  court,  the  probate  court,  and  the  circuit  court. 
The  situation  in  this  type  of  county  is  much  like  that  in  the  preceding 
type. 

Each  court  in  the  judicial  organization  is  an  independent  ad- 
ministrative unit.  The  judges  are  independent  of  each  other  and  are 
responsible  to  no  other  officer  for  the  manner  in  which  they  conduct 
their  courts  or  for  the  amount  of  work  they  do.  To  be  sure,  the  con- 
stitution requires  that  the  circuit  judges  report  to  the  general  assembly 
the  number  of  days  they  hold  court  in  the  counties  composing  their 
circuits.  This  is,  however,  done  by  only  a few  judges.  The  constitu- 
tion also  requires  all  judges  of  courts  of  record,  inferior  to  the  su- 
preme court  to  report  annually  in  writing  to  the  supreme  court  de- 
fects and  omissions  in  the  laws.43  This  requirement  is  not  practically 
obsolete. 

The  few  tendencies  in  Illinois  toward  unification  in  the  courts  may 
be  briefly  mentioned : 

(1)  In  cases  of  disagreement  among  the  judges  of  the  circuit 
court  as  to  the  counties  in  which  they  shall  hold  court,  the  chief  justice 
of  the  supreme  court  shall  make  assignments.44  The  chief  justice  has 
rarely  been  called  upon  to  exercise  this  function. 

(2)  The  supreme  court  or  any  judge  thereof  when  sc  requested 
may  assign  judges  of  the  circuit  court  to  assist  in  other  circuits  or  to 
the  superior  court  of  Cook  County.  Such  requests  are  sometimes  made 
of  the  supreme  court  in  cases  of  emergency.  The  circuit  and  superior 
courts  of  Cook  county,  however,  usually  deal  directly  with  down-state 


43  Constitution  of  1870,  Chap.  6,  Sec.  31. 

44  Jones  and  Addington’s  Illinois  Statutes  Annotated,  Ch.  37,  Sec.  3067. 


773 


judges  whose  services* are  desired  without  making  a request  of  the  su- 
preme court. 

(3)  Various  statutes  permit  the  interchange  of  judges.  County 
and  probate  judges  may.  interchange  with  each  other.  City  judges  may 
interchange  with  each  other.  They  may  also  hold  court  for  circuit, 
superior  or  probate  judges. 

The  extent  to  which  down-state  judges  have  held  court  in  Chicago 
is  indicated  on  page  894  of  the  appendix.  As  already  stated,  complaint 
has  been  made  in  certain  down-state  communities  because  of  the 
large  amount  of  time  spent  by  their  judges  in  Chicago  courts. 


The  judicial  situation  in  Chicago  and  Cook  County.  The 

judicial  situation  in  Chicago  and  Cook  County  raises  problems  some- 
what different  in  character  from  those  of  the  down-state  counties.  For 
this  reason  it  is  deemed  advisable  to  treat  this  subject  separately. 

Before  discussing  the  practical  working  of  the  various  parts  of  the 
judicial  system  in  Cook  County,  it  may  prove  of  interest  to  consider 
briefly  the  jurisdictional  relationships  of  the  various  trial  courts  open 
to  litigants,  and  in  a general  way  possible  choices  of  courts  open  to 
litigants  as  a result  of  overlappings  of  jurisdiction.  For  this  purpose 
it  will  be,  convenient  to  consider  first  the  situation  in  Cook  county  out- 
side of  the  city  of  Chicago,  and  second  the  situation  within  the  city  of 
Chicago. 

Cook  county  constitutes  a judicial  circuit  and  an  appellate  court 
district.  In  addition  to  the  circuit  court,  the  county  court  and  the  pro- 
bate court,  Cook  county  has  the  criminal  court  of  Cook  county  and  the 
superior  court  of  Cook  county.  In  Chicago  there  is  also  the  municipal 
court  of  Chicago.  In  Chicago  Heights  there  is  the  city  court  of  Chi- 
cago Heights.  Outside  of  Chicago  there  are  justices  of  the  peace  and 
police  magistrates.  Since  the  establishment  of  the  municipal  court  of 
Chicago  in  1905,  there  have  been  no  justices  of  the  peace  or  police  mag- 
istrates in  the  city  of  Chicago. 

The  circuit  court  of  Cook  County  and  the  superior  court  of  Cook 
County  are  courts  of  concurrent  jurisdiction.  The  criminal  court  of 
Cook  county  has  “the  jurisdiction  of  a circuit  court  in  all  cases  of  crim- 
inal and  quasi-criminal  nature  arising  in  the  county  of  Cook”.45  The 
municipal  court  of  Chicago  has  concurrent  jurisdiction  with  the  cir- 
cuit and  superior  courts  of  Cook  county  within  the  city  of  Chicago  in 
all  contract  cases,  and  in  tort  cases  where  the  amount  involved  does  not 
exceed  $1,000,  and  concurrent  jurisdiction  within  the  city  with  the 
criminal  court  of  Cook  county  in  non-indictable  offenses.  The  county 
court  has  concurrent  jurisdiction  with  the  municipal  court  of  Chicago, 
the  circuit  court  of  Cook  county  and  the  superior  court  of  Cook  county 
in  certain  cases.  Neither  the  municipal  court  of  Chicago  nor  the 
county  court  has  any  equity  jurisdiction. 

The  following  courts  are  avaible  to  the  litigant  outside  of  the 
city  of  Chicago:  the  courts  of  the  justices  of  the  peace  and  police  mag- 


45  Constitution  of  1870,  Art.  VI.,  Sec.  26. 


774: 


istrates,  the  county  court,  the  probate  court,  the' circuit  court,  and  the 
superior  court  of  Cook  county.  If  the  litigation  is  such  that  the  city 
court  of  Chicago  Heights  has  jurisdiction,  that  court  is  also  open  as  a 
possible  choice.  An  Evanston  litigant  having  a contract  claim  involv- 
ing $300  or  less  or  any  other  kind  of  claim  for  a similar  amount 
justiciable  in  a court  of  a justice  of  the  peace  may,  under  this  system  of 
courts,  sue  an  Evanston  defendant  before  any  justice  of  the  peace  or 
police  magistrate  in  the  county  or  bring  his  action  in  the  county  court, 
the  circuit  court,  or  the  superior  court  of  Cook  county.  Substitute  a 
Chicago  Heights  plaintiff  and  a Chicago  Heights  defendant  for  the  Ev- 
anston plaintiff  and  Evanston  defendant,  and  you  must  add  to  the 
above  mentioned  courts  the  city  court  of  Chicago  Heights.  If  the 
amount  of  the  claim  of  the  Evanston  plaintiff  is  greater  than  $300,  the 
justice  of  the  peace  loses  jurisdiction.  In  that  case  the  plaintiff  may 
still  sue  in  the  county  court,  the  circuit  court  or  the  superior  court  of 
Cook  county,  provided  his  claim  is  not  greater  than  $1,000.  Substi- 
tute again  Chicago  Heights  litigants  for  Evanston  litigants  and  you 
must  again  add  the  city  court  of  Chicago  Heights.  If  the  claim  is  in 
excess  of  $1,000,  the  county  court  cannot  be  employed,  but  the  Evans- 
ton litigant  may  still  sue  either  in  the  circuit  court  or  in  the  superior 
court  of  Cook  county.  The  Chicago  Heights  litigant  in  the  same  type 
of  case  could  also  sue  the  Chicago  Heights  defendant  in  the  city  court 
of  Chicago  Heights.  If  a chancery  case,  the  Evanston  litigant  could 
file  his  bill  either  in  the  circuit  court  or  the  superior  court  of  Cook 
county.  The  Chicago  Heights  litigant  might  in  addition  proceed  in 
the  city  court  of  Chicago  Heights.  Appeals  from  justices  of  the  peace 
in  Evanston  may  be  taken  to  the  county  court  or  the  circuit  court,  or 
apparently  to  the  superior  court  of  Cook  county.  Appeals  from  jus- 
tices of  the  peace  in  Chicago  Heights  may  be  taken  to  the  city  court  of 
Chicago  Heights,  the  county  court,  the  circuit  court  or  to 
the  superior  court  of  Cook  county.  The  probate  court  alone  has  orig- 
inal jurisdiction  in  probate  matters  arising  in  the  county.  Appeals 
from  the  probate  court  in  such  matters  must  ordinarily  be  taken  to  the 
circuit  court  where  a trial  de  novo  is  had. 

Let  us  now  examine  the  situation  with  respect  to  litigation  arising 
in  the  city  of  Chicago.  If  a Chicago  plaintiff  wishes  to  sue  a Chicago 
defendant  in  a contract  claim  involving  $1,000  or  less,  he  may  proceed 
either  in  the  municipal  court  of  Chicago,  the  county  court,  the  circuit 
court  or  the  superior  court  of  Cook  county.  If  the  amount  involved  is 
greater  than  $1,000,  the  county  court  loses  jurisdiction.  He  may,  how- 
ever, still  sue  in  the  municipal  court  of  Chicago,  the  circuit  court  or  the 
superior  court  of  Cook  county.  If  a tort  case  of  a character  which 
might  be  brought  before  a justice  of  the  peace  outside  of  the  city  of 
Chicago,  the  plaintiff  may  proceed  in  the  municipal  court  of  Chicago, 
the  county  court,  the  circuit  court,  or  the  superior  court  of  Cook  county, 
providing  the  amount  of  the  claim  does  not  exceed  $1,000.  If  the  sum 
demanded  is  in  excess  of  $1,000,  the  plaintiff  still  has  a choice  between 
the  circuit  court  and  the  superior  court  of  Cook  county.  In  chancery 
matters,  plaintiff  may  proceed  either  in  the  circuit  court  or  the  superior 
court  of  Cook  county. 


Non-indictable  offenses  committed  in  the  city  of  Chicago  may  be 
prosecuted  in  the  municipal  court  of  Chicago  or  the  criminal  court  of 
Cook  county.  In  indictable  offenses  the  jurisdiction  of  the  municipal 
court  is  confined  to  that  of  a committing  magistrate.  Trial  of  the  ac- 
cused must  take  place  in  the  criminal  court  of  Cook  county. 

Misdemeanors  committed  within  Cook  county,  but  outside  of  the 
city  of  Chicago,  are  prosecuted  in  the  criminal  court  of  Cook  county. 
If  within  the  jurisdiction  of  a justice  of  the  peace,  they  may  also  be 
prosecuted  before  any  justice  of  the  peace  or  police  magistrate.  In 
cases  prosecuted  only  on  indictment  justices  of  the  peace  or  police 
magistrates  may  act  only  in  the  capacity  of  committing  magistrates; 
indictment  and  trial  is  before  the  criminal  court  of  Cook  county. 

In  this  connection,  it  should  be  noted  that  the  county  court,  the  cir- 
cuit court,  the  superior  court  of  Cook  county,  and  the  city  court  of  Chi- 
cago Heights  exercise  no  criminal  jurisdiction. 

The  justice  of  the  peace  system  in  Cook  County  outside  of 
Chicago.  There  are  168  justices  of  the  peace  and  police  magistrates 
in  Cook  County  outside  the  city  of  Chicago.  As  in  down  state  com- 
munities, the  number  of  justices  is  far  in  excess  of  the  number  required 
to  transact  the  business  of  the  community. 

The  evils  of  the  justice  of  the  peace  system  are  perhaps,  more 
keenly  felt  in  Cook  County  outside  of  the  city  of  Chicago  than  in  any 
other  part  of  the  state.  This  is  particularly  true  in  the  southern  part  of 
the  county  where  the  situation  is  possibly  worse  than  it  was  in  Chicago 
before  the  abolition  of  the  justice  of  the  peace  system  within  the  city 
limits.  This  is  intended  as  a criticism  of  the  system  rather  than  of  the 
individual  justices.  Many  of  the  justices  in  Cook  county  are  high 
grade  men. 

Before  the  abolition  of  the  justice  of  the  peace  system  in  the  city 
of  Chicago  it  was  a common  practice  to  sue  a litigant  in  that  part  of 
the  county  most  inaccessible  to  him,  and  to  have  the  case  set  for  trial 
at  an  early  morning  hour.  If  the  defendant  managed  to  be  present  the 
plaintiff  invariably  obtained  a continuance.  While  this  particular  type 
of  abuse  is  not  now  common  in  Cook  county,  it  sometimes  occurs.  The 
mere  fact  that  the  justice  of  the  peace  has  jurisdiction  throughout  the 
county  is  bound  to  lead  to  inconvenience  in  numerous  cases  even  when 
the  plaintiff  has  no  intention  of  embarrassing  the  defendant.  If  a 
plaintiff  in  Harvey  wishes  to  sue  a defendant  in  Glencoe,  he  will  natur- 
ally accommodate  himself  and  bring  Ihe  suit  before  a justice  of  the 
peace  in  Harvey  rather  than  before  a justice  of  the  peace  in  Glencoe. 
Such  a procedure  of  necessity  requires  the  defendant  to  come  to  Har- 
vey if  he  wishes  to  contest  the  case. 

Justices  of  the  peace  and  police  magistrates  act  as  committing 
magistrates  on  preliminary  examinations.  In  handling  this  type  of 
business  the  more  careful  justices  notify  the  state’s  attorney’s  office  in 
order  that  he  may  have  a representative  present.  Many  justices 
proceed  without  giving  him  such  notice.  In  criminal  prosecutions 
before  justices  of  the  peace  and  police  magistrates,  the  charge  is  some- 
times changed  in  order  to  permit  the  justice  to  dispose  of  the  case 


776 


and  thereby  render  it  unnecessary  to  hold  the  offender  over  to  the 
grand  jury. 

The  most  vigorous  complaints  against  the  justice  of  the  peace 
system  come  from  the  southern  part  of  the  county.  In  that  part  of  the 
county  unscrupulous  men  have  sometimes  succeeded  in  getting  elected 
to  the  office  of  justice  of  the  peace  and  police  magistrate.  Abuses  are 
quite  common.  Alliances  between  justices,  constables  and  police  offi- 
cers to  fleece  the  foreign  population  of  that  part  of  the  county  have 
not  been  infrequent.  The  garnishment  process  has  been  greatly 
abused.  Members  of  the  bar  have  called  attention  to  the  unfortunate 
impression  which  such  practices  create  in  the  minds  of  the  immigrant 
as  to  the  nature  of  American  justice. 

Appeals  from  justices  of  the  peace  may  be  taken  to  the  county 
court,  the  circuit  court,  or  the  superior  court  of  Cook  county.  Most 
of  these  appeals  go  to  the  circuit  court.  Formerly  the  circuit  court  made 
no  special  provision  for  handling  such  cases,  but  mixed  them  with  per- 
sonal injury  and  other  law  cases.  Appeals  from  justices,  together  with 
appeals  from  the  probate  court,  are  now  placed  on  a separate  calendar 
and  assigned  to  a single  judge. 

The  city  court  of  Chicago  Heights.  The  city  court  of  Chicago 
Heights  exercises  jurisdiction  in  law  and  equity  cases.  Some  question 
having  arisen  as  to  the  criminal  jurisdiction  of  this  court,  that  juris- 
diction has  not  been  exercised.  This  has  led  to  a somewhat  unfortu- 
nate result.  Chicago  Heights  is  twenty-seven  miles  from  Chicago. 
The  state’s  attorney  has  no  representatives  there.  The  result  is  that 
all  criminal  cases,  except  such  as  may  be  prosecuted  before  a justice 
of  the  peace  or  police  magistrate,  are  handled  by  the  criminal  court  of 
Cook  county.  This  has  led  to  a somewhat  lax  administration  of  the 
criminal  law  in  that  part  of  the  county. 

The  city  court  at  Chicago  Heights  draws  its  jurors  from  the 
entire  county.  It  is,  however,  the  policy  of  the  judge  not  to  call  men 
who  live  in  the  more  remote  parts  of  the  county. 

The  court  is  a great  convenience  to  the  people  of  Chicago  Heights, 
in  that  it  enables  litigants  to  get  a prompt  adjudication  of  their  cases 
without  subjecting  them  to  the  delays  of  the  courts  in  Chicago. 

Municipal  court  of  Chicago.  The  events  leading  to  * the  or- 
ganization of  the  municipal  court  in  Chicago  have  already  been  dis- 
cussed.46 To  establish  this  court  it  was  necessary  to  amend  the  con- 
stitution of  the  state.  This  was  done  in  1904,  when  the  general  as- 
sembly was  given  power  to  provide  a local  municipal  government  for 
the  city  of  Chicago,  and  in  the  event  that  municipal  courts  were 
created',  to  prescribe  the  jurisdiction  and  practice  of  these  courts,  to 
abolish  justices  of  the  peace  in  Chicago,  and  to  limit  the  jurisdiction 
of  justices  of  the  peace  in  Cook  county  outside  of  Chicago  to  that 
territory.  In  1905  the  municipal  court  of  Chicago  was  created  by  the 
general  assembly,  and  the  justices  of  the  peace  system  abolished  within 
the  limits  of  the  city  of  Chicago. 


40  See  pages  737-8. 


m 


The  municipal  court  of  Chicago  was  one  of  the  first  unified  courts 
to  be  established  in  the  United  States.  It  consists  of  a chief  justice 
and  thirty  associate  judges.  The  chief  justice  is  the  general  superin- 
tendent of  the  court.  He  presides  over  all  meetings  of  the  judges, 
and  assigns  the  associate  judges  to  duty  in  the  branch  courts.  It  is 
made  the  duty  of  each  associate  judge  to  attend  and  serve  at  the 
branch  court  to  which  he  is  assigned.  The  chief  justice  classifies  the 
cases  filed  in  the  court  and  superintends  the  preparation  of  calendars. 
Each  associate  judge  is  required  to  make  a monthly  report  to  the  chief 
justice  of  the  duties  he  has  performed  during  the  preceding  month. 
This  report  must  specify  the  number  of  days  he  has  held  court  and  the 
number  of  hours  per  day.  The  judges  of  the  court  are  required  to 
meet  each  month  to  receive  and  investigate  complaints  and  to  make 
rules  for  the  court. 

The  power  of  the  chief  justice  to  classify  and  distribute  cases 
brought  in  the  court  and  to  assign  judges  to  different  calendars  is 
significant.  It  enables  the  chief  justice  to  have  all  cases  of  a like 
character  returned  to  the  same  branch.  The  power  to  assign  a judge 
to  any  branch  enables  him  to  select  the  judges  best  qualified  by  ex- 
perience and  temperament  to  preside  over  the  specialized  branches. 

This  makes  for  uniformity  in  the  treatment  of  similar  cases  and  for 
specialization  among  the  judges.  It  enables  the  chief  justice  to  assign 
the  poorer  judges  to  classes  of  cases  of  lesser  importance  where  they 
can  do  the  least  harm.  It  also  enables  him  to  keep  the  judges  in  all 
branches  busy,  since  he  can  transfer  cases  from  one  judge  whose 
calendar  may  be  congested  to  another  who  may  have  little  to  do. 

The  municipal  court  act  prescribes  a simplified  procedure,  and 
gives  the  court  wide  powers  to  make  rules  not  inconsistent  with  the 
act.47 

The  court  has  been  given  a large  degree  of  supervision  over  the 
clerk  and  bailiff  by  the  provision  that  the  chief  justice  shall  superintend 
the  keeping  of  the  records  and  that  the  number  of  deputies  shall  be 
determined  by  the  court. 

For  the  purposes  of  this  court  the  city  of  Chicago  is  divided  into 
two  districts.  The  first  district  comprises  practically  all  of  that  part 
of  the  city  north  of  Seventy-first  street  and  west  of  Cottage  Grove 
Avenue,  and  the  second  district  the  remainder  of  the  city.  All  civil 
branches  in  the  first  district  are  located  in  the  city  hall.  Some  of  the 
criminal  branches  in  this  district  are  located  in  the  city  hall  and  some  in 
other  parts  of  the  city.  In  the  second  district  one  branch  court  disposes 
of  both  civil  and  criminal  cases.  A statement  showing  the  system  of  dis- 
tribution of  work  among  the  judges  of  the  municipal  court  early  in 


December,  1919,  follows: 

First  class  cases  and  motions 1 judge 

Small  claims 3 judges 

Citations  in  quasi  criminal  cases 1 judge 

Forcible  detainer  and  distress  for  rent 1 judge 

Automobile  branch 1 judge 


47  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  283. 


778 


Domestic  relation  branch 

Attachment,  garnishment,  replevin,  detinue. 

Morals  court 

Boys  court 

Non- jury  cases 

Jury  cases 

Criminal  cases 

Jury  and  vagrancy 


1 judge 
1 judge 
1 judge 

1 judge 

2 judges 
10  judges 

6 judges 
. 1 judge 


Total 30  judges47a 

The  municipal  court  of  Chicago  has  unlimited  jurisdiction  of  ac- 
tions upon  contracts  and  actions  for  conversion  of  or  injury  to  per- 
sonal property.  It  also  has  general  jurisdiction  in  all  classes  of  com- 
mon law  cases  where  the  plaintiff  does  not  claim  over  $1,000.  It  has 
jurisdicton  of  non-indictable  offenses  where  the  punishment  is  not 
imprisonment  in  the  penitentiary  or  death. 

With  the  exception  of  jury  cases,  the  business  of  the  municipal 
court  is  kept  well  in  hand.  It  now  takes  from  twelve  to  eighteen 
months  before  a civil  case  is  reached  on  the  jury  calendar.  Criminal 
work  is  handled  far  more  expeditiously.  If  the  accused  does  not 
demand  a jury  trial  the  case  is  frequently  disposed  of  in  twenty-four 
hours.  If  placed  on  an  emergency  calendar  they  are  reached  within 
a shorter  time. 

In  the  municipal  court  the  parties  do  not  get  a jury  trial  in  civil 
cases  as  a matter  of  course,  as  in  the  other  courts  of  record.  In 
order  to  have  a jury  in  such  cases,  it  is  necessary  to  make  a demand 
and  pay  a fee  of  six  dollars.  While  this  has  caused  the  number  of 
jury  trials  to  be  greatly  decreased,  the  decrease  has  not  been  suf- 
ficient to  enable  the  court  to  keep  abreast  of  its  jury  cases.  Demands 
for  jury  trials  are  frequently  made  by  litigants  for  the  sole  purpose 
of  delaying  the  trial  of  the  case. 

The  judges  of  the  municipal  court  may  interchange  with  city 
judges  and  with  county  judges.48  A table  showing  the  names  of  down 
state  judges  .who  have  served  in  this  court  during  the  past  four  years, 
with  the  number  of  days  of  service  per  year,  is  printed  in  the  appendix 
on  page  894.  Notwithstanding  the  use  of  down  state  judges,  the 
court  has  been  unable  to  catch  up  on  jury  trials. 

The  municipal  court  act  makes  it  the  duty  of  the  chief  justice  to 
examine  all  jurors.49  Enough  jurors  are  selected  to  provide  each 
jury  branch  with  twelve  jurors  and  enough  more  to  meet  contingen- 
cies are  kept  in  reserve  in  the  waiting  room.  When  a jury  retires 
another  is  made  up  from  the  reserve  and  the  judge  may  proceed  at 
once  with  his  next  call.  The  jurors,  when  they  have  returned  their 
verdict  in  one  cause,  are  free  to  be  assigned  to  any  other  trial  branch. 

The  criminal  jurisdiction  of  the  municipal  court  is  limited  to 
criminal  cases  in  which  the  punishment  is  by  fine  or  imprisonment 

«a  There  is  now  (December,  1919)  one  vacancy  in  the  municipal  court  of 
Chicago. 

48  Hurd’s  'Revised  Statutes,  Chap.  37,  Sec.  276. 

49  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  289. 


779 


otherwise  than  in  the  penitentiary  and  all  other  criminal  cases  wnicn  the 
laws  in  force  from  time  to  time  may  permit  to  be  prosecuted  other- 
wise than  by  indictment  of  a grand  jury.  In  cases  involving  indictable 
offenses  the  municipal  court  acts  in  the  capacity  of  a committing  magis- 
trate, holding  offenders  over  to  the  grand  jury. 

Until  the  municipal  court  was  established  judicial  statistics  were 
almost  unavailable  in  the  United  States.  The  organization  of  this 
court  has  enabled  the  chief  justice  to  gather  much  statistical  material, 
and  reports  of  the  court  containing  detailed  statistics  have  been  pub- 
lished regularly. 

The  greater  part  of  the  business  of  the  court  is  commercial.  Its 
business  is  constantly  increasing.  Personal  injury  suits  may  not  be 
brought  in  the  municipal  court  if  the  amount  involved  is  over  $1,000. 
Its  criminal  jurisdiction,  as  already  indicated,  is  sornewhat  limited. 
It  has  been  urged  that  the  court  is  required  to  hold  over  'to  the  grand 
jury  cases  which  it  might  much  more  easily  and  speedily  dispose  of 
itself.  Complaint  has,  on  the  other  hand,  been  made  that  the  municipal 
court  too  frequently  holds  offenders  over  to  the  grand  jury  in  cases 
which  it  could  more  appropriately  handle  itself  by  changing  the  charge 
to  one  within  its  jurisdiction. 

County  court  of  Cook  County.  The  county  court  of  Cook 
County  has  substantially  the  same  jurisdiction  as  that  of  the  down 
state  county  court  in  counties  where  there  is  also  a probate  court.  The 
administrative  duties  of  the  county  judg*e  are  much  greater  in  Cook 
County  than  in  other  counties.  Chicago  is  one  of  the  cities  which  has 
adopted  the  city  election  commissioner’s  act.  The  duties  of  the  county 
judges  in  connection  with  the  supervision  of  the  election  machinery  of 
the  counties  consume  about  one-half  of  his  time.  In  Cook  County  the 
county  court  is  much  used  in  that  class  of  common  law  cases  in  which 
the  county  court  has  concurrent  jurisdiction  with  the  circuit  and  su- 
perior courts.  These  are  that  class  of  cases  in  which  a justice  of  the 
peace  has  jurisdiction  and  in  which  the  amount  involved  does  not  ex- 
ceed one  thousand  dollars.  The  use  of  the  county  court  for  this  class  of 
cases  has  been  due  to  the  congestion  in  the  other  courts.  Attorneys 
seeking  prompt  trials  have  turned  to  the  county  court  for  relief.  This 
has-  resulted  in  congestion  in  the  jury  calendar  in  the  county 
court  itself  at  times.  The  county  court  has  concurrent  jurisdiction  with 
the  circuit  court  in  appeals  from  justices  of  the  peace  and  police  magis- 
trates outside  of  the  city  of  Chicago  Appeals  from  justices  of  the  peace 
are,  however,  ordinarily  taken  to  the  circuit  court. 

The  county  court  exercises  no  criminal  jurisdiction  It  has 
maintained  the  view  that  it  has  no  jurisdiction  in  this  class  of  cases. 
For  that  reason  it  will  not  take  jurisdiction  in  appeals  from  justices  of 
the  peace  and  police  magistrates  outside  of  the  city  of  Chicago  in 
criminal  matters. 

An  idea  as  to  the  character  of  business  before  the  county  court 
can  be  obtained  from  the  following  statement  of  the  cases  filed  in  this 
court  in  1918 : 


780 


Kind  of  cases  No.  of  cases. 

Lunacy  cases 3,265 

Pauper  and  non-support  cases 299 

Common  law  cases  and  appeals  from  justices  of 

the  peace 507 

Condemnation  cases 24 

Special  assessment  cases 863 

Inheritance  tax  cases 769 

Objection  to  taxes. 161 

Deaf,  dumb,  blind  and  feeble  minded  cases 133 

Adoption  cases 653 


6,674 

In  December,  1919,  five  judges  were  sitting  in  the  county  court. 
All  of  these  judges,  including  the  county  judge  himself,  are  from  down- 
state  counties.  In  addition  the  probate  judge  of  Cook  County  hears 
lunacy  cases  in  the  county  court  every  Thursday. 

A table  showing  the  names  of  down-state  judges  who  have  held 
county  court  in  Chicago  during  the  past  four  years,  together  with  the 
number  of  days  of  court  held  by  each  per  year,  is  printed  in  the  ap- 
pendix on  page  894. 

Probate  court  of  Cook  County.  The  probate  court  is  one  of 
the  busiest  courts  in  Chicago.  The  amount  of  detail  work  in  this 
court  is  enormous.  The  business  of  the  court  is  rapidly  increasing. 
The  probate  judge  is,  of  course,  unable  to  give  personal  attention  to 
all  matters  coming  before  the  court.  To  handle  the  increasing  amount 
of  work  the  court  has  adopted  the  so-called  system  of  assistant  judges. 
The  assistant  judge  is,  legally  speaking,  a deputy  clerk  of  the  court. 
The  statute  gives  the  clerk  of  the  court  power  to  appoint  deputy 
clerks.50  Under  this  power  the  clerk  of  the  probate  court  appoints 
deputy  clerks  who,  through  the  action  of  the  probate  judge,  serve  as 
assistants  to  the  judge,  relieving  him  of  a great  mass  of  detail  work 
and  enabling  him  to  devote  his  attention  to  the  big  problems  coming 
before  the  court.  The  difficulty  with  the  assistant  judge  sys- 
tem in  the  probate  court  is  the  entire  lack  of  control  of 
the  probate  judge  over  the  appointment  of  clerks  who  act  as  his 
assistants.  Their  appointment  is  vested  in  the  probate  clerk,  \yho  is 
politically  independent  of  the  probate  judge.  The  probate  clerk  is  in 
a position  to  appoint  as  assistants  men  who  are  not  in  harmony  with 
the  probate  judge.  The  probate  judge  can,  of  course,  decline  to  per- 
mit men  thus  appointed  to  execute  orders  or  otherwise  act  in  his  name. 
It  is  not  difficult  to  see  that  such  a system  is  fraught  with  dangerous 
possibilities. 


In  the  case  of  Frackelton  v.  Masters,  249  111.  30  (1911) 
the  supreme  court  held  that  the  administration  of  testa- 

mentary trusts  is  not  a probate  matter,  but  a chancery  mat- 
ter, and  that  the  general  assembly  can  not  extend  the  juris- 
diction of  probate  courts  to  include  the  administration  of 


50  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  230. 


781 


such  trusts.  Testamentary  trusts  cannot,  therefore,  be  administered 
by  the  probate  court  of  Cook  County  or  of  any  other  county.  Many 
lawyers  feel  that  this  result  is  unfortunate  and  that  the  probate  court 
should  have  this  power. 

Except  in  the  few  cases  where  an  appeal  from  the  probate  court 
may  be  taken  directly  to  the  appellate  or  supreme  court,  appeals  from 
the  probate  court  go  to  the  circuit  court  where  a trial  de  novo  is  had. 
In  1918  a large  part  of  the  judicial  time  of  one  of  the  judges  of  the 
circuit  court  of  Cook  County  was  consumed  in  hearing  probate  ap- 
peals. 

The  matter  of  testamentary  trusts  and  trials  de  novo  will  receive 
further  consideration. 

Before  leaving  the  probate  court,  attention  may  properly  be  called 
to  the  differences  in  procedure  between  the  probate  court  and  the  other 
courts.  In  the  probate  court  large  sums  of  money  are  annually  paid 
out  under  orders  and  decrees  of  the  court.  These  sums  are  arrived 
at  with  little  formality  so  far  as  pleadings  and  procedure 
are  concerned.  The  contrast  between  the  simplified  pleading  and  pro- 
cedure in  the  handling  of  probate  matters  involving  large  sums  of 
money  and  the  complex  system  of  pleading  and  practice  involved  in 
the  adjudication  of  contests  in  common  law  and  equity  cases  is  not 
without  significance. 

Circuit  and  superior  courts  of  Cook  County.  The  circuit  court 
of  Cook  County  and  the  superior  court  of  Cook  County  have  practi- 
cally identical  jurisdiction.  They  perform  substantially  the  same  func- 
tions. Each  now  has  twenty  judges.  From  the  forty  judges  of  the 
circuit  and  superior  courts  judges  are  assigned  to  the  criminal  court  of 
Cook  county.  Circuit  and  superior  court  judges  are  also  subject  to 
service  in  the  appellate  court.  In  December,  1919,  there  are  four  cir- 
cuit court  judges  and  four  superior  court  judges  sitting  in  the  criminal 
court  and  four  circuit  court  judges  and  five  superior  court  judges  in  the 
appellate  court. 

The  constitution  prescribes  that  the  judge  having  the  shortest  un- 
expired term  shall  be  chief  justice  of  the  court  of  which  he  is  a judge. 
In  November,  1919,  both  the  chief  justice  of  the  circuit  court  and  the 
chief  justice  of  the  superior  court  were  sitting  in  the  appellate  court 
for  the  first  district.  Each  court  has  an  executive  committee  consist- 
ing  of  the  chief  justice  and  the  heads  of  the  law  and  chancery  divisions. 
The  heads  of  the  law  and  chancery  divisions  are  elected  by  the  judges 
of  the  court.  The  executive  committee  has  general  supervision  over 
the  assignment  of  the  work.  The  effectiveness  of  such  a committee  is 
dependent  largely  upon  its  personnel.  Some  committees  have  accom- 
plished much.  The  difficulty  is  that  under  the  present  system  each 
judge  in  the  circuit  court  and  each  judge  in  the  superior  court  is  inde- 
pendent of  every  other  judge  and  of  the  court.  He  can  hold  court 
whenever  he  pleases  and  can  hear  cases  on  such  calendars  as  he  sees 
fit.  In  other  words,  he  can  work  whenever  he  pleases  and  can  do  the 
kind  of  work  he  wishes  to  do.  The  success  of  any  administrative  plan 
is  largely  dependent  upon  the  voluntary  co-operation  of  the  judges. 


782 


The  practical  operation  of  the  present  administrative  system  in 
the  two  courts  is  well  illustrated  in  the  attempt  to  secure  specialization 
of  judges  in  these  courts.  Some  years  ago  both  courts  adopted  the 
policy  of  assigning  judges  as  chancellors  for  the  length  of  their  terms. 
The  purpose  was  to  secure  greater  efficiency.  This  policy  has  been 
steadily  adhered  to  in  the  superior  court.  In  that  court  the  two  chan- 
cellors serve  as  such  until  the  expiration  of  their  terms.  The  circuit 
court  followed  the  plan  for  a time  but  broke  away  from  it  a few  years 
ago,  owing  to  the  refusal  of  certain  judges  to  abide  by  the  rule.  The 
result  is  that  in  the  circuit  court  judges  sit  as  chancellors  for  one  year 
only.  This  change  of  policy  on  the  part  of  the  circuit  court,  while 
beneficial  so  far  as  the  individual-  judges  are  concerned,  is  unfortunate. 
Chancery  matters  are  frequently  complicated  and  involved,  and  often 
drag  over  a number  of  years.  The  waste  of  time  expended  by  a new 
chancellor  in  familiarizing  himself  with  the  details  of  the  cases  handled 
by  his  predecessor  the  year  before  is  quite  apparent. 

There  is  some  attempt  at  specialization  in  the  common  law  calen- 
dar of  the  circuit  court.  One  of  the  judges  of  this  court  has  been 
sitting  on  condemnation  and  tax  cases  for  two  years ; another  on 
mandamus  cases  for  the  same  length  of  time.  Separate  calendars  are 
also  made  of  quo  warranto  cases,  workmen’s  compensation  cases,  ap- 
peals from  the  probate  court,  and  appeals  from  justices  of  the  peace. 
Short  cause  cases  and  short  cause  appeal  cases,  applications  for  leave 
to  sue  as  a poor  person,  petitions  for  writs  of  habeas  corpus  (except  in 
criminal  cases)  and  petitions  for  writs  of  certiorari  are  assigned  to 
judges  who  hear  all  cases  of  that  type  during  the  court  year.  In  the 
superior  court  there  appears  to  be  no  attempt  whatever  at  specializa- 
tion on  the  common  law  side.  Cases  are  assigned  to  judges  in  rotation 
in  groups  of  five  without  reference  to  their  subject  matter. 

The  large  increase  in  divorce  cases  has  rendered  it  necessary  to 
assign  judges  especially  to  this  work.  In  the  circuit  court  it  was  for- 
merly the  practice  for  one  judge  to  hear  nothing  but  divorce  cases  for  a 
year.  One  judge  heard  4,000  of  these  cases  in  the  course  of  twelve 
months.  This  proved  to  be  too  nerve-wracking.  For  the  judicial  yeai 
beginning  October,  1919,  a new  arrangement  has  been  made  whereby 
the  four  chancellors  sit  in  succession  each  for  eleven  weeks  on  default 
divorce  cases  only.  Non-default  cases  are  mingled  with  regular  chan- 
cery matters.  In  the  superior  court  two  judges  were  assigned  exclu- 
sively to  divorce  cases  at  the  beginning  of  the  court  year  of  1919-1920. 
One  judge  has  since  been  transferred  to  jury  cases,  the  congestion  in  di- 
vorce matters  having  already  been  relieved. 

Both  the  circuit  court  and  the  superior  court  of  Cook  county  have 
been  badly  congested  in  the  past.  At  times  they  have  been  from  two  to 
three  years  behind  in  their  calendars.  The  large  number  of  jury  trials 
tends  to  congest  the  work  of  both  courts.  In  the  circuit  and  superior 
courts  the  litigants  in  a civil  suit  get  a jury  trial  as  a matter  of  course 
unless  they  specifically  waive  it.  The  number  of  waivers  is  not  great. 
Down  state  judges  have  been  used  to  help  clean  up  the  calendars.  The 
superior  court  has  not  used  out  of  town  judges  during  1919.  The 


783 


chancery  calendars  of  both  courts  are  now  in  much  better  shape.  Their 
jury  calendars,  though  much  improved,  are  still  behind. 

Masters  in  chancery  may  be  dealt  with  briefly.  Under  the  exist- 
ing system  each  court  appoints  twenty  masters  in  chancery,  one  mas- 
ter being  nominated  by  each  judge.  Litigants  select  their  own  mas- 
ters ; the  result  has  been  the  concentration  of  the  business  in  the  hands 
of  a few  masters.  The  master  is  compensated  by  fees.  The  amount  of 
compensation  depends  upon  the  length  of  the  record.  Under  such  a 
system  there  is  apt  to  be  little  tendency  on  the  part  of  the  master  to 
restrict  the  amount  of  testimony  taken. 

A master  in  chancery  can  save  the  judge  a lot  of  time.  He  takes 
testimony  and  practically  decides  the  case  which  simply  goes  to  the 
judge  for  review.  With  the  fee  system  abolished,  with  a reduction  in 
the  number  of  masters,  and  with  the  master  more  intimately  connected 
with  the  court,  it  is  probable  that  the  chancery  judge  could  be  saved  a 
much  larger  part  of  his  time. 

By  the  constitution  certain  non- judicial  duties  are  placed  upon  the 
judges  of  the  circuit  court.  The  number  of  employes  of  the  county 
fee  offices  is  determined  by  the  judges  of  this  court.  The  judges  are 
also  charged  by  statute  with  the  appointment  of  probation  officers  and 
the  board  of  south  park  commissioners.  The  duty  of  determining  the 
number  of  employes  in  the  county  fee  offices  has  proved  quite  a 
troublesome  one  at  times, and  has  consumed  a good  deal  of  the  time  of 
the  judges. 

Appeals  from  the  probate  court  go  to  the  circuit  court  where  a 
trial  de  novo  is  had;  In  1918  a large  part  of  the  time  of  one  judge  in 
the  circuit  court  was  consumed  in  hearing  such  appeals.  Appeals  from 
justices  of  the  peace  outside  the  city  of  Chicago  usually  go  to  the  cir- 
cuit court. 

The  juvenile  court  is  a branch  of  the  circuit  court.  The  circuit 
judges  appoint  one  of  their  number  to  act  as  judge  of  this  court.  In 
Cook  county  this  court  handles  the  cases  of  dependent,  neglected,  and 
delinquent  children. 

The  following  statements  show  the  character  of  work  being  per- 
formed by  the  various  judges  of  the  circuit  and  superior  courts  of  Cook 
County  on  December  5,  1919  : 


Circuit  court. 

Chancery  cases 3 judges 

Default  divorce  cases 1 judge 

Common  law  calendars 7 judges 

Juvenile  court 1 judge 

Assigned  to  criminal  court  of  Cook  County  4 judges 


Total  20  judges 

Superior  court. 

Chancery  cases 2 judges 

Default  divorce  cases 1 judge 


Common  law  calendars 8 judges 

Assigned  to  criminal  court  of  Cook  County  4 judges 
Assigned  to  appellate  court  for  first  district  5 judges 

Total 20  judges 

The  criminal  court  of  Cook  County.  The  constitution  gives  to 
the  criminal  court  of  Cook  County  the  jurisdiction  of  a circuit  court  in 
all  cases  of  a criminal  and  quasi-criminal  nature  arising  in  the  county 
of  Cook.51  The  constitution  also  provides  that  the  terms  of  this  court 
shall  be  held  by  one  or  more  of  the  judges  of  the  circuit  or  superior 
courts  of  Cook  county,  as  nearly  as  may  be  in  alternation,  as  may  be 
determined  by  the  judges  or  provided  by  law.52  Judges  are  assigned 
to  the  criminal  court  from  the  circuit  and  superior  courts.  In  Decem- 
ber, 1919,  there  are  four  circuit  court  judges  and  four  superior  court 
judges  in  the  criminal  court.  The  assignment  is  for  one  year.  Re-as- 
signments are  rare.  One  judge  has,  however,  been  sitting  in  the  crimi- 
nal court  for  a number  of  years.  This  policy  of  assigning  judges  to  the 
criminal  court  from  the  circuit  and  superior  courts  for  short  periods 
tends  to  discourage  specialization  in  criminal  work. 

Under  the  present  criminal  procedure  the  municipal  court  conducts 
preliminary  examinations.  Persons  accused  of  the  more  serious  crimes 
not  within  the  jurisdiction  of  the  municipal  court  are  held  over  to  the 
grand  jury,  which  conducts  an  examination  de  novo,  releasing  the 
accused  or  turning  him  over  to  the  criminal  court  for  trial.  There  is 
little  delay  in  the  conduct  of  preliminary  examinations  and  examina- 
tions by  the  grand  jury.  Trials  in  the  criminal  court  are  sometimes  de- 
layed. Jail  cases  are  rarely  delayed  over  two  or  three  months.  It  fre- 
quently takes  counsel  that  long  to  prepare  his  case.  If  prisoners  are 
not  tried  at  the  term  of  court  commencing  within  four  months  of  the 
date  of  commitment  they  must  be  set  at  liberty.  In  bail  cases  the 
delays  are  often  longer.  Such  delays  are,  however,  frequently  the  re- 
sult of  continuances  agreed  upon  by  the  state’s  attorney’s  office  and 
counsel  for  the  accused. 

Under  the  existing  law  a jury  trial  may  not  be  waived  in  criminal 
cases  which  can  be  prosecuted  only  by  indictment,  even  though  both 
the  state  and  the  accused  are  willing  to  waive.  This  rule  results  in 
requiring  a person,  whose  case  might  otherwise  be  disposed  of,  to  re- 
main in  jail  or  on  bail  until  a jury  trial  can  be  had. 


Summary  of  judicial  situation  in  Chicago  and  Cook  County. 

To  recapitulate,  the  following  courts  of  record  sit  within  the  area  of 
Cook  County : the  appellate  court,  the  circuit  court,  the  superior  court 
of  Cook  county,  the  criminal  coprt  of  Cook  county,  the  county  court, 
the  prob^e  court,  the  municipal  court  of  Chicago,  and  the  city  court 
of  Chicago  Heights.  The  circuit  court  has  twenty  judges,  the  superior 
court  of  Cook  county  twenty  judges,  the  municipal  court  thirty-one 


61  Constitution  of  1870,  Art.  VI.  Sec.  26. 
52  Constitution  of  1870,  Art.  VI,  Sec.  26. 


judges,  the  county  court  one  judge,  the  probate  court  one  judge  and 
the  city  court  of  Chicago  Heights  one  judge,  making  a total  of  seventy- 
four  elected  judges  in.  the  county.  Judges  are  assigned  to  the  ap- 
pellate court  and  the  criminal  court  of  Cook  county  from  the  circuit 
court  and  superior  court  of  Cook  county.  In  addition  to  the  seventy- 
four  judges  elected  in  Cook  county,  down  state  judges  are  constantly 
holding  court  in  Chicago. 

Of  the  eight  courts  of  record  in  Cook  county  two,  the  circuit 
court  and  the  superior  court  of  Cook  county,  have  almost  identical 
jurisdiction.  The  jurisdiction  of  the  circuit  court,  the  superior  court 
of  Cook  county,  the  county  court,  and  the  municipal  court  of  Chicago 
overlap  in  several  classes  of  cases.  Similarly  the  jurisdictions  of  the 
municipal  court  and  the  criminal  court  of  Cook  County  * and  those  of 
the  circuit  court,  superior  court  of  Cook  county,  county  court,  and  the 
city  court  of  Chicago  Heights  overlap.  The  extent  of  the  over-lap- 
pings of  jurisdiction,  as  well  as  questions  as  to  the  exclusive  jurisdic- 
tion of  these  courts,  have  given  rise  to  many  problems  and  consider- 
able litigation.  Each  court  is  an  organization  distinct  and  separate 
from  the  other.  Each  pursues  it's  way  independently  of  the  others. 
The  circuit  court  and  the  superior  court  of  Cook  County  have  adopted 
uniform  rules.  Each  of  the  other  courts  has  its  own  rules  of  practice 
and  procedure.  The  circuit  court,  the  superior  court  of  Cook  county, 
the  county  court  and  the  city  court  of  Chicago  Heights  have  the  same 
system  of  pleading:  the  municipal  court  of  Chicago  has  another. 
There  are  as  many  clerk’s  offices  as  there  are  courts.  The  Chicago 
Bureau  of  Public  Efficiency  estimates  that  the  consolidation  of  the 
present  clerk’s  offices  into  a single  organization  would  make  possible 
a saving  of  not  less  than  $100,000  a year.  Of  this  amount  $54,000  is 
rated  by  the  bureau  as  overhead  expense.53  The  numerous  clerk’s 
offices  often  occasion  extra  work  to  attorneys  engaged  in  the  ex- 
amination of  court  records. 

The  multiplicity  of  courts  often  gives  the  plaintiff  an  opportunity 
to  choose  between  different  courts  and  judges.  He  can  watch  the 
leanings  of  the  judges  in  the  different  courts  and  bring  his  case  before 
the  judge  or  court  which  is  most  strongly  inclined  toward  his  view. 
This  has  been  a factor  in  the  distribution  of  divorce  business  between 
the  circuit  and  superior  courts.  On  the  other  hand,  a large  number  of 
courts  is  a nuisance  to  the  litigant  and  attorney  in  other  respects 
Litigants  sometimes  get  into  the  wrong  court.  Sometimes  the  juris- 
diction of  the  various  courts  is  such  that  it  is  necessary  to  resort  to  two 
or  more  courts  to  dispose  of  the  same  controversy.  In  such  a case  a 
separate  suit  must  be  started  in  each  of  the  courts,  new  issues  framed, 
and  the  evidence  repeated.  This  causes  a duplication  of  clerical  work 
and  requires  one  judge  to  listen  to  evidence  which  another  judge  has 
heard.  There  is  also  a great  waste  of  time  and  energy  in  the  service 
of  process  in  the  various  courts.  Process  in  the  circuit  court  and 
superior  court  of  Cook  county  is  served  by  the  office  of  the  sheriff ; 
process  of  the  municipal  court  is  served  by  its  bailiffs.  Each  organi- 

53  Unification  of  local  governments  in  Chicago.  Report  prepared  by  Chicago 
Bureau  of  Public  Efficiency,  January,  1917. 


zation  has  a set  of  men  running  about  the  city  serving  summons.  A 
single  organization  could  serve  the  process  of  all  three  courts. 

The  congestion  of  work  in  the  various  courts  has  been  the  sub- 
ject of  much  complaint.  An  attorney  desiring  a prompt  trial  and 
having  a choice  of  courts  naturally  chooses  the  one  in  which  there  is 
the  least  congestion.  Some  time  ago  the  jury  calendars  of  the  circuit 
and  superior  courts  were  two  or  more  years  behind.  Litigants  then 
brought  their  cases  in  the  municipal  and  county  courts  whenever  pos- 
sible. Soon  the  jury  calendars  of  these  courts  got  behind.  Then  the 
pendulum  began  to  swing  back  to  the  circuit  and  superior  courts.  Not- 
withstanding the  assistance  of  down  state  judges  it  has  not  been  pos- 
sible to  bring  the  jury  calendars  of  the  various  courts  up  to  date.  In  the 
municipal  court,  in  order  to  get  a jury  trial,  it  is  necessary  to  ask  for 
one,  and  to  pay  a fee  of  six  dollars.  This  has  not  stopped  jury  trials 
to  the  extent  anticipated.  In  many  instances  a jury  trial  is  demanded 
by  a defendant  for  the  purpose  of  delay.  In  the  other  courts  of 
records  the  parties  get  a jury  trial  in  a civil  case  as  a matter  of  course, 
unless  they  specifically  waive  it.  Waivers  are  not  frequent  enough 
to  be  a factor  in  relieving  the  congestion  on  the  jury  calendars. 

The  great  difficulty  seems  to  be  the  lack  of  any  directing  head  of 
the  judicial  machine  in  Cook  county.  Each  court  operates  as  an  inde- 
pendent organization.  . Nor  do  most  of  the  individual  courts  have  an 
executive  clothed  with  the  requisite  authority.  Each  judge  of  the 
circuit  and  superior  court,  in  the  last  analysis,  is  independent  of  every 
other  judge  and  of  the  court,  and  can  hold  court  at  such  times  and 
on  such  calendars  as  he  wishes.  The  municipal  court  alone  is  so  or- 
ganized as  to  give  its  chief  justice  a large  executive  control  over  the 
business  of  the  court. 


Appellate  courts  and  supreme  courts.  There  are  four  ap- 
pellate districts  in  the  state  of  Illinois.  The  first  district  consists  of  the 
county  of  Cook,  the  second  district  includes  all  the  counties  in  the 
northern  grand  division  of  the  supreme  court,  except  Cook  County. 
The  third  and  fourth  districts  include  the  counties  in  the  southern  and 
central  grand  divisions  of  the  supreme  court,  respectively.  In  the  first 
appellate  district  there  are  at  the  present  time  a main  court  and  two 
branch  courts.  The  two  branch  courts  are  organized  in  the  same  man- 
ner as  the  main  court.  The  boundaries  of  the  appellate  court  districts 
are  indicated  by  heavy  lines  on  the  map  at  page  755. 

The  judges  of  the  appellate  court  are  assigned  to  that  duty  from 
the  circuit  court  by  the  supreme  court.  Judges  of  the  superior  court 
of  Cook  county  are  also  assignable  to  duty  in  the  appellate  court. 
Three  judges  are  assigned  to  each  appellate  court  and  branch  thereof. 
Of  the  nine  judges  sitting  in  the  appellate  court  for  the  first  district 
and  its  two  branches,  in  December,  1919,  four  are  from  the  circuit 
court  of  Cook  County  and  five  are  from  the  superior  court  of  Cook 
County.  All  of  the  three  judges  sitting  in  the  appellate  court  for  the 
second  district  are  from  circuits  embraced  wholly  or  partly  within  that 


787 


appellate  district.  Of  the  three  judges  constituting  the  appellate  court 
for  the  third  district  two  are  from  the  thirteenth  and  fourteenth  cir- 
cuits, respectively,  both  of  which  lie  wholly  without  the  district.  The 
third  is  from  the  ninth  circuit,  which  is  partly  within  the  second  appel- 
late district  and  partly  within  the  third.  In  the  fourth  appellate  district 
one  judge  is  from  the  second  circuit,  which  is  wholly  within  this  dis- 
trict. The  other  two  judges  are  from  the  sixth  and  eighth  circuits, 
both  of  which  are  within  the  third  appellate  district.  Appellate  court 
judges  usually  hold  circuit  court  between  the  sessions  of  the  appellate 
court.  Judges  who  are  assigned  to  the  appellate  court  for  the  first  dis- 
trict from  the  circuit  and  superior  courts  of  Cook  County  do  not,  how- 
ever, sit  in  the  circuit  and  superior  courts  while  on  the  appellate  bench. 

The  system  of  selecting  appellate  court  judges  from  the  circuit 
court  judges  is  much  criticised.  Appellate  court  judges  frequently  sit  in 
the  appellate  court  in  the  district  in  which  their  circuit  is  located.  A 
member  of  the  appellate  court  in  such  case  does  not  of  course  sit  upon 
cases  which  he  heard  in  the  circuit  court.  Many  members  of  the  bar 
feel,  however,  that  even  though  he  does  not  sit  when  such  cases  are 
heard  by  the  appellate  court,  nevertheless  his  presence  as  a member 
of  the  court  creates  in  the  minds  of  his  associates  a certain  reluctance 
to  reverse  his  decision  in  the  lower  court.  It  is  .also  felt  that  in  many 
instances  the  case  is  reviewed  by  a judge  of  no  higher  caliber  than  the 
judge  in  the  trial  court.  The  system  is  also  criticised  because  it  some- 
times takes  from  busy  circuits  judges  who  cannot  well  be  spared 
for  appellate  court  work.  We  have  already  seen  that  the  business  in 
the  various  judicial  circuits  is  not  evenly  distributed.  Some 
are  able  to  spare  judges  for  appellate  court  work;  others  are  not. 
Under  such  conditions  certain  circuits  must  suffer  inconvenience  or 
remain  unrepresented  on  the  appellate  bench. 

The  supreme  court  consists  of  7 judges,  one  being  elected  from 
each  of  the  supreme  court  election  districts  indicated  on  the  map  at 
page  821.  The  variance  in  the  population  of  these  seven  districts  has 
already  been  noted  on  page  757.  In  accordance  with  the  rules  of  the 
supreme  court  of  Illinois  the  chief  justice  is  selected  for  one  year  in 
accordance  with  a rotary  scheme,  regard  being  had  to  the  seniority  of 
the  judges. 

A brief  recapitulation  of  the  jurisdiction  of  the  appellate  and 
supreme  courts  may  be  worth  while.  In  criminal  cases  above  the 
grade  of  misdemeanors,  and  in  cases  involving  a freehold,  a franchise, 
or  the  validity  of  a statute,  there  is  a direct  appeal  to  the  supreme 
court.  Statutes  also  provide  for  a direct  appeal  to  the  supreme  court  in 
eminent  domain  cases,  drainage  matters,  contests  of  election  for  cer- 
tain officers,  cases  arising  under  the  workmen’s  compensation  act, 
appeals  from  the  circuit  court  of  Sangamon  County  in  review  of  the 
orders  of  the  public  utilities  commission,  and  in  other  statutory  pro- 
ceedings. 

In  all  other  cases  appeals  must  be  taken  to  the  appellate  court. 
The  decision  of  the  appellate  court  in  such  cases  is  final  unless  the  ap- 
pellate court  grants  a certificate  of  importance  or  the  supreme  court 
a writ  of  certiorari,  or  unless  the  case  is  one  in  which  there  is  a con- 


788 


stitutional  right  of  appeal  to  the  supreme  court.  Certificates  of  import- 
ance may  be  granted  in  any  case,  regardless  of  the  amount  claimed.  In 
actions  ex  contractu  (exclusive  of  actions  involving  a penalty)  and  in 
all  cases  sounding  in  damages  the  judgment,  exclusive  of  costs,  must  be 
greater  than  $1,000  in  order  to  obtain  a writ  of  certiorari.  The  su- 
preme court  has  original  jurisdiction  in  cases  relating  to  the  revenue  and 
in  mandamus  and  habeas  corpus.  Such  original  jurisdiction  on  the  part 
of  the  supreme  court  is  not  exclusive,  and  is  exercised  very  sparingly  by 
the  court.  The  appellate  court  has  no  original  jurisdiction. 

An  examination  of  the  reports  of  * the  appellate  and  supreme 
courts  during  the  past  ten  years  has  been  made  with  a view  of  ascer- 
taining more  definite  information  as  to  the  actual  working  of  these 
courts.  In  the  case  of  the  Supreme  Court  the  reports  for  the  years 
1910  to  1919  (Volumes  243  to  289,  inclusive,  but  not  including  rehear- 
ings of  1909  cases)  were  carefully  analyzed.  The  records  of  the  court 
for  this  period  were  also  examined  for  data  as  to  the  working  of  the 
certiorari  law.  For  the  appellate  court  an  examination  was  made  of 
such  reports  as  were  available  for  the  same  period ; these  included 
volumes  152  to  212,  inclusive. 

Ten  thousand  and  sixteen  cases  are  reported  in  Volumes  152  to 
212,  inclusive,  of  the  appellate  court  reports.  Of  these  6,163  were 
affirmed  and  3,692  reversed.  One  hundred  and  sixty-one  were  other- 
wise disposed  of.  These  figures  are  analyzed  in  the  tables  on  p.  895 
of  the  Appendix. 

Three  thousand  eight  hundred  and  seventy-nine  opinions  are 
printed  in  the  47  volumes  of  the  Supreme  Court  reports  analyzed.  Of 
these  but  111  were  cases  involving  the  exercise  of  the  original  juris- 
diction of  the  Supreme  Court.  Two  thousand  nine  hundred  and 
seventy-six  were  cases  which  had  been  taken  direct  to  the  Supreme 
Court  from  the  trial  courts.  Seven  hundred  and  ninety-two  were  cases 
which  had  come  to  the  Supreme  Court  through  the  appellate  court. 

Of  the  2,976  cases  taken  direct  from  the  trial  courts  to  the  Su- 
preme Court,  1767,  or  about  59  per  cent,  were  cases  in  which  there  is 
a constitutional  right  of  appeal  to  the  Supreme  Court  and  in  which  the 
Practice  Act  has  provided  for  a direct  appeal  to  that  court.  In  other 
words,  they  comprise  criminal  cases  above  the  grade  of  misdemeanor 
and  cases  involving  a franchise,  a freehold,  or  the  validity  of  a statute. 
The  remainder,  1,209,  or  about  41  per  cent,  were  cases  in  which  there 
is  no  constitutional  right  of  appeal  to  the  Supreme  Court.  They  were, 
however,  cases  in  which  various  statutes  had  provided  for  a direct 
appeal  to  the  Supreme  Court. 

Of  the  792  cases  which  had  come  to  the  Supreme  Court  through 
the  appellate  court,  308,  or  approximately  39  per  cent,  came  by  certifi- 
cate of  importance,  and  397,  or  about  50  per  cent,  by  writ  of  certiorari. 
Sixty-six,  or  about  8 per  cent,  were  cases  in  which  there  is  a consti- 
tutional right  of  appeal  to  the  Supreme  Court,  but  in  which  no  pro- 
vision has  been  made  for  a direct  appeal  from  the  trial  court  to  the 
Supreme  Court.  Twenty-one  cases,  the  remaining  3 per  cent,  came  to 
the  Supreme  Court  by  virtue  of  statutory  appeals  prior  to  the  cer- 
tiorari law  of  1909. 


789 


The  records  of  the  Supreme  Court  show  that  during  the  period 
from  1910  to  1919  there  were  1,660  applications  for  certiorari  to  that 
court.  Of  these,  469,  or  about  28  per  cent,  were  allowed.  One  thou- 
sand one  hundred  and  eighty-seven,  or  about  72  per  cent,  were  denied. 
Four  were  pending  before  the  c«urt  in  December,  1919.  The  certiorari 
act  of  1909  has  greatly  relieved  the  Supreme  Court,  and  without  it 
that  court  would  have  been  seriously  overburdened. 

Tables  presenting  an  analysis  of  the  above  figures  are  printed  in 
the  Appendix  on  p.  896,  and  on  the  insert  at  page  896. 


V.  PROBLEMS  OF  JUDICIAL  ORGANIZATION  IN 
ILLINOIS. 


The  purpose  of  this  chapter  is  to  set  forth  the  various  suggestions 
which  have  been  made  for  constitutional  changes  in  the  judicial  arti- 
cle of  the  constitution  of  1870.  Suggestions  which,  if  adopted,  will 
effect  a substantial  reorganization  of  the  judicial  system  will  be  dis- 
cussed first.  Proposals  of  amendment  which  assume  that  the  judicial 
system  will  remain  substantially  as  at  present  but  which  seek  to  correct 
certain  specific  defects  now  thought  to  exist  in  the  present  system  will 
then  be  taken  up. 


Character  of  judicial  article.  At  the  outset  attention  should  be 
invited  to  the  problem  of  detail  in  connection  with  the  judicial  article 
of  a proposed  new  constitution.  In  other  words,  to  what  extent  is  the 
system  of  judicial  organization  to  be  retained  in  the  constitution,  and 
to  what  extent  is  it  to  be  left  to  the  general  assembly?  The  constitu- 
tional conventions  in  Illinois  since  1818  have  faced  the  problem  of 
changing  the  judicial  system  to  meet  the  needs  of  an  increasing  popu- 
lation. The  constitution  of  1848  established  a rigid  system  which  was 
soon  outgrown,  and  the  constitutional  conventions  of  1862  and  1869-70 
were  in  a large  part  made  necessary  because  of  the  unsatisfactory  judi- 
cial organization  so  created.  The  constitution  of  1870  introduced  a 
number  of  elements  of  flexibility  into  the  judicial  organization  but  pre- 
scribed the  details  of  the  system  in  the  text  of  the  constitution  itself. 
This  system  has  created  difficulty  throughout  the  state,  and  was  largely 
responsible  for  the  constitutional  amendment  of  1904  permitting 
changes  with  respect  to  the  city  of  Chicago. 

The  provision  in  the  constitution  of  1870  relating  to  Cook  County 
was  framed  when  the  county  had  a population  of  350,000.  The  pres- 
ent judicial  organization  in  Cook  County  is  to  be  found  in  the  constitu- 
tion itself.  This  system,  which  was  suitable  to  the  needs  of  a popula- 
tion of  half  a million,  is  unequal  to  the  demands  of  a population  of  two 
and  a half  millions.  Since  the  system  itself  is  embodied  in  the  funda- 
mental law  of  the  state,  changes  are  impossible  without  altering  the 
constitution  itself.  The  establishment  of  the  municipal  court  of  Chi- 
cago required  a constitutional  amendment. 

In  view  of  the  inconveniences  which  have  arisen  under  the  exist- 
ing constitution  as  a result  of  the  mass  of  detail  in  its  judicial  article, 
the  suggestion  will  be  made  that  the  new  judicial  article  omit  refer- 
ence to  any  other  court  than  the  supreme  court,  giving  power  to  the 


791 


general  assembly  to  create  inferior  courts.  This  is  in  substance  the  plan 
adopted  by  the  framers  of  the  constitution  of  the  United  States.  Ar- 
ticle III,  Secion  1 of  the  federal  constitution  vests  the  judicial  power  in 
one  supreme  court,  and  in  such  inferior  courts  as  the  congress  may 
from  time  to  time  ordain  and  establish.  The  judicial  articles  of  the  con- 
stitutions of  the  following  states  follow  substantially  the  same  lan- 
guage as  that  of  the  Federal  constitution : Maine,  Rhode  Island  and 

Oregon  (by  constitutional  amendment,  1910).  In  Massachusetts,  New 
Hampshire  and  Vermont  the  constitutions  do  not  vest  the  judicial 
power  in  any  specific  courts.  In  Iowa  the  constitution  provides  that 
“the  judicial  power  shall  be  vested  in  a supreme  court,  district  court, 
and  such  other  courts,  inferior  to  the  supreme  court,  as  the  general  as- 
sembly may,  from  time  to  time,  establish.”  (Article  V,  Section  1).  A 
proposed  constitutional  amendment  was,  however,  submitted  to  and 
rejected  by  the  people  of  California  in  1918  giving  the  legislature 
power  to  provide  for  all  courts  inferior  to  the  Supreme  Court.  A 
discussion  of  this  proposal  will  be  found  in  Transactions  of  the  Com- 
monwealth Club  of  California,  Vol.  XIII,  No.  4 (June,  1918). 

The  adoption  of  such  a scheme  would  give  to  the  general  assembly 
the  power  to  create  such  courts  as  may  be  necessary  to  handle  the 
judicial  business  of  the  state,  and  of  the  various  parts  thereof,  for  any 
period  of  time.  A judicial  system  suitable  to  the  needs  of  the  state  in 
1920  may  be  unsuitable  to  its  needs  in  1950.  Unless  the  proposed  con- 
stitution is  so  framed  as  to  permit  the  general  assembly  to  provide  such 
a system  of  judicial  organization  as  will  meet  the  needs  of  a future 
period,  the  same  situation  may  develop  under  the  constitution  of  1920 
which  existed  under  the  constitution  of  1848  and  which  has  continued 
in  a lesser  degree  under  the  constitution  of  1870. 

If  details  as  to  the  judicial  system  are  omitted  from  the  constitu- 
tion, it  will  of  course  be  possible  to  simplify  greatly  the  judicial  article. 
Most  of  the  provisions  contained  in  the  present  constitution  can  be 
omitted.  If  the  plan  is  adopted  of  creating  only  the  supreme  court  by 
the  constitution,  leaving  the  establishment  of  other  courts  to  the  general 
assembly,  the  constitutional  provision  should  be  so  worded  as  to  permit 
the  organization  of  a unified  judicial  system  with  the  supreme  court  as 
an  integral  part  thereof. 

Two  complete  plans  have  recently  been  published  for  the  redraft 
of  the  judicial  article  of  the  constitution  of  Illinois.  One  draft  is 
by  Mr.  Albert  M.  Kales  and  appears  in  the  August,  1917,  number  of 
the  Journal  of  the  American  Judicature  Society.  The  essential  ele- 
ments in  Mr.  Kales’  proposal  are:*  (1)  That  three  districts  be  con- 
stituted for  the  election  of  the  members  of  the  supreme  court,  two 
districts  electing  two  members  each;. the  third  district  (composed  of 
the. counties  now  in  the  seventh  district)  electing  three  judges;  (2)  The 
omission  from  the  constitution  of  provisions  for  courts  other  than  the 
supreme  court,  vesting  jurisdiction  “in  such  inferior  courts  and  other 
tribunals  as  the  legislature  may  from  time  to  time  ordain  and  estab- 
lish”, existing  courts  to  remain  until  replaced  as  the  result  of  legis- 
lative action;  (8)  Appointment  of  the  clerk  of  the  supreme  court  by 
the  court  itself. 


792 


Mr.  Hiram  T.  Gilbert  published  in  1919  “A  proposed  judiciary 
article  for  the  constitution  of  1920  with  explanatory  notes”.  This 
proposal  with  the  explanatory  notes  runs  to  forty-eight  printed  pages, 
and  cannot  be  easily  summarized  but  its  essential  elements  are : 
(1)  The  detailed  provision  by  the  constitution  for  all  parts  of  the 
judicial  system,  with  an  effort  to  make  the  judicial  organization  inde- 
pendent of  legislative  control.  In  carrying  out  this  policy,  methods  of 
practice  and  procedure  are  to  be  taken  from  the  general  assembly  and 
vested  exclusively  in  the  judicial  department,  subject  to  certain  limita- 
tions; and  the  judicial  department  is  to  determine  exclusively  the  num- 
ber of  its  employees,  and  the  amount  of  appropriations  to  be  made  to 
the  judicial  department.  (2)  The  supreme  court  is  to  be  given  general 
supervision  over  the  whole  judicial  organization  of  the  state. 
(3)  Clerks,  sheriffs  and  employees  are  to  be  chosen  by  the  courts 
themselves.  State’s  attorneys  are  to  be  appointed  and  removed  by  the 
attorney  general  with  the  approval  of  the  judges.  (4)  All  courts  in- 
ferior to  the  supreme  court  within  Cook  County  (including  justices  of 
the  peace)  are  to  be  consolidated  into  a court  known  as  the  Court  of 
Cook  County.  All  such  courts  outside  of  Cook  County  are  to  be  con- 
solidated into  a court  to  be  known  as  the  circuit  court.  The  court  of 
Cook  County,  and  the  circuit  court  (outside  of  Cook  County)  are  to 
have  two  divisions,  the  original  division  with  branches  each  presided 
over  by  a single  judge,  and  an  appellate  division  composed  of  not  less 
than  three  judges  designated  to  this  duty  from  among  circuit  judges. 
Branches  of  the  original  division  are  to  hold  sessions  in  each  county  of 
the  state.  (5).  Judicial  circuits  are  to  remain,  and  at  least  four  judges 
are  to  be  elected  in  each  circuit  for  fifteen  year  terms.  Supreme  court 
judges  outside  of  Cook  County  are  also  to  be  elected  for  fifteen  year 
terms.  (6)  The  supreme  court  is  to  consist  of  nine  judges;  and  the 
state  is  to  be  divided  into  seven  districts.  From  each  of  six  districts 
one  judge  is  to  be  elected  by  popular  vote.  The  seventh  district  (Cook 
County)  is  to  have  three  judges,  appointed  by  the  governor  upon  the 
recommendation  of  a majority  of  the  judges  of  the  court  of  Cook 
County,  each  judge  to  serve  “until  his  death,  resignation,  retirement  or 
removal.”  (7)  Judges  of  the  court  of  Cook  County  are  to  be  ap- 
pointed by  the  governor,  upon  approval  of  a majority  of  the -judges  of 
the  supreme  court.  Each  judge  is  to  hold  office  “until  his  death,  resig- 
nation, retirement  or  removal.”  An  election  is  to  be  held  in  Cook 
County  each  six  years  at  which  the  qualified  electors  may  express  their 
disapproval  of  any  judge,  and  as  a result  of  such  an  expression  of  dis- 
approval the  office  becomes  vacant. 

Judge  Gilbert’s  proposal  also  contains  provisions  regarding  judicial 
vacancies,  the  coroner,  jury  and  grand  jury.  Aside  from  the  attempt 
to  set  up  a judicial  department  completely ‘independent  of  the  general 
assembly,  Judge  Gilbert’s  aim  seems  to  be  much  the  same  as  that  of 
Mr.  Kales.  They  both  aim  at  the  establishment  of  a unified  judicial 
system  with  larger  powers  over  judicial  procedure.  The  one  seeks  to 
accomplish  this  purpose  by  leaving  present  details  out  of  the  consti- 
tution, the  other  by  placing  all  the  details  of  judicial  organization  in  the 
constitution. 


793 


The  unified  court.  There  have  been  numerous  suggestions  for 
the  unification  of  the  judicial  system  both  with  respect  to  Cook  County 
and  with  respect  to  the  state- wide  judicial  organization.  A unified 
court  has  been  strongly  urged  for  Cook  County.  The  evils  of  the  pres- 
ent system  of  decentralization  are,  of  course,  most  marked  in  a metro- 
politan community.  To  remedy  these  evils,  it  is  proposed  to  create  one 
trial  court  for  Cook  County.  This  court  would  absorb  the  jurisdiction 
of  the  following  courts : the  circuit  court  of  Cook  County,  the  superior 
court  of  Cook  County,  the  county  court  of  Cook  County,  the  probate 
court,  the  municipal  court  of  Chicago,  and  the  city  court  of  Chicago 
Heights.  It  would  also  absorb  the  jurisdiction  of  justices  of  the  peace 
and  police  magistrates  outside  the  city  of  .Chicago.  The  scheme  carries 
with  it  the  abolition  of  all  the  courts  of  record  enumerated  above,  as 
well  as  of  the  justice  of  the  peace  system  in  Cook  County  outside  of  the 
city  of  Chicago.  A bill  embodying  a plan  for  a unified  court  for  the 
city  of  Chicago  was  proposed  in  the  fifty-first  general  assembly  (1919). 
Some  of  the  provisions  of  this  plan  are,  however,  of  doubtful  validity 
under  the  present  constitution. 

Proposals  for  unification  will  in  all  probability  be  laid  before  the 
constitutional  convention.  Owing  to  the  lack  of  flexibility  in  the  pres- 
ent sections  of  the  judicial  article  it  is  impossible  for  the  general  as- 
sembly to  create  a really  unified  court  either  for  Cook  County  or  for  the 
down-state  counties  without  encountering  constitutional  objections.  If 
a unified  court  is  to  be  established,  or  if  power  to  establish  such  a court 
in  the  future  is  to  be  vested  in  the  general  assembly,  the  existing 
judicial  article  will  have  to  be  changed. 

Justice  Vickers,  in  discussing  the  Cook  County  courts,  has  said  :l 

“If  the  courts  of  Cook  County  could  be  reorganized  and  placed 
under  the  head  of  a competent  chief  justice  with  power  vested  in  him 
to  direct  and  control  the  working  power  of  the  court,  and  he  could  so 
systematize  the  business  as  to  get  the  best  possible  results  from  each  in- 
dividual member  of  the  court,  I think  the  capacity  of  the  court  would 
be  greatly  increased.  If  your  courts  could  be  put  under  an  intelligent 
executive  head  with  absolute  power  to  direct  and  control,  much  in  the 
same  manner  as  the  general  management  of  a large  commercial  or 
manufacturing  establishment  is  controlled  and  directed  by  some  one 
mind,  there  is  no,  question  but  that  the  difficulty  [of  congested  dockets] 
could  be  much  mitigated  if  not  entirely  removed.  The  trouble  is  that 
each  individual  member  of  the  court  has  equal  power  with  every  other 
member  and  is  to  a large  extent  a law  unto  himself  and  can  control  his 
time,  energy  and  ability  according  to  his  own  wishes.” 

The  American  Bar  Association  has  also  given  much  attention  to 
the  subject  of  the  unified  court  both  for  metropolitan  districts  and  for 
the  state  at  large.  A committee  appointed  to  make  an  analysis  of  the 
court  system  in  the  United  States  made  the  following  recommendations 
in  1909  :2 


1 See  Illinois  Law  Review,  VII,  235. 

2 Report  of  the  committee  to  suggest  remedies  and  formulate  laws  to  pre- 
vent delays  and  unneccessary  cost  in  litigation.  American  Bar  Association  Re- 
ports, 1909,  page  578,  at  page  589. 


794 


“1.  The  whole  judicial  power  of  each  state,  at  least  for  civil 
causes,  should  be  vested  in  one  great  court,  of  which  all  tribunals  should 
be  branches,  departments  or  divisions.  The  business  as  well  as  the 
judicial  administration  of  this  court  should  be  thoroughly  organized  so 
as  to  prevent  not  merely  waste  of  judicial  power,  but  all  needless 
clerical  work,  duplication  of  papers  and  records,  and  the  like,  thus 
obviating  expense  to  litigants  and  cost  to  the  public. 

“While  the  whole  judicial  power  should  be  concentrated  in  one 
court,  the  court  should  be  constituted  in  three  chief  branches : 
(1)  county  courts  (including  municipal  courts),  having  exclusive 
jurisdiction  of  all  petty  causes,  all  of  them  to  constitute  in  the  aggre- 
gate one  branch,  but  with  numerous  local  offices  where  papers  may  be 
filed,  and  as  many  places  for  hearing  of  causes  in  each  county  as  the 
exigencies  of  business  may  require;  (2)  a superior  court  of  first  in- 
stance (to  be  called  by  some  appropriate  name),  having  a defined,  or- 
iginal, exclusive,  general  jurisdiction  at  law,  in  equity,  in  probate  and 
administration,  in  guardianship  and  kindred  matters,  and  in  divorce ; 
this  court  to  have  numerous  local  offices  where  papers  may  be  filed  and 
at  least  one  regular  place  of  trial  in  each  county,  and  to  be  divided  into 
at  least  two,  and  probably  three,  divisions — (a)  one  for  disposition  of 
actions  at  law  and  other  matters  requiring  a jury  or  of  kindred  nature, 
(b)  one  for  equity  causes  and  (c)  one  for  probate,  administration, 
guardianship  and  the  like.  The  first  might  be  called  the  law  division, 
or  the  common  pleas  division,  the  second  the  equity  or  the  chancery 
division  and  the  third  the  probate  division.  Possibly  many  jurisdictions 
would  desire  to  unite  the  first  two,  but  it  seems  to  the  committee  that 
there  is  much  to  be  said  for  separate  administration  of  equity,  provided 
the  courts  are  free  to  administer  whatever  relief  the  case  warrants  and 
the  distinction  is  made  one  of  practical  administration  only.  Divorce 
would  be  relegated  generally  to  the  second  division,  though  there  is 
much  to  be  said  for  committing  it  to  the  third.  The  third  branch  would 
be  a single  ultimate  court  of  appeal.  All  judges  should  be  judges  of  the 
whole  court.  They  should  be  assigned  in  some  appropriate  way  to  the 
branch  and  the  division  thereof,  or  the  locality  in  which  they  are  to  sit, 
but  should  be  eligible  and  liable  to  sit  in  any  other  branch,  or  division, 
or  locality  when  called  upon  to  do  so. 

“Supervision  of  the  business  administration  of  the  whole  court 
should  be  committed  to  some  one  high  official  of  the  court  who  would 
be  responsible  for  failure  to  utilize  the  judicial  power  of  the  state 
effectively.  He  should  have  power  to  make  reassignments,  or  temp- 
orary assignments  of  judges  to  particular  branches  or  divisions  or  lo- 
calities as  the  state  of  judicial  business,  vacancies  in  office,  illness  of 
judges  or  casualties  may  require.  Likewise,  he  should  have  the  power, 
subject  to  general  rules,  to  assign  or  transfer  causes  or  proceedings 
therein  for  hearing  or  disposition  according  to  the  condition  of  dockets 
for  the  time  being,  and  it  should  be  his  duty  to  see  to  it  that  the  energies 
of  the  judicial  department  are  employed  fully  and  efficiently  upon  all 
business  in  hand.  What  this  official  of  the  whole  court  does  for  the 
general  supervision  of  its  affairs,  should  be  done  for  each  branch  and 
each  division,  and  where  there  are  large  cities,  for  each  locality,  by 


795 


some  official  specially  charged  with  this  duty  and  responsible  for  the 
efficient  and  business-like  conduct  of  its  affairs  and  disposition  of 
causes  upon  the  dockets.  This  official  should  be  a judge,  not  a clerk, 
and  the  responsibility  laid  on  him  should  be  such  as  to  guard  against 
abuse  of  his  office  and  insure  efficiency. 

“In  like  manner  the  business  administration  of  the  court  should  be 
organized.  The  whole  clerical  and  stenographic  force  should  be  under 
control  and  supervision  of  a responsible  officer  and  an  officer  in  each 
branch,  division,  and,  if  necessary,  each  locality,  should  have  a like  duty 
and  a responsibility  for  efficient  conduct  of  business  commensurate 
therewith.  The  office  in  each  locality  could  be  an  office  for  filing 
papers  for  the  whole  court  and  every  branch  -and  division  thereof ; the 
papers  to  be  kept  there  when  required  in  the  locality,  or  transmitted  to 
the  proper  office  elsewhere.  Legislation  should  not  attempt  to  lay 
down  details  upon  this  subject.  The  general  principles  should  be  set- 
tled, and  the  remainder  should  be  left  to  rules  of  court  to  be  devised, 
altered  and  improved  as  experience  points  out  the  problems  to  be  met 
and  the  best  solutions  thereof. 

“In  dealing  with  the  subject  of  expense  in  the  administration  of 
justice,  this  subject  of  organization  of  the  business  side  of  the  judicial 
department  is  of  especial  importance.  We  have  carried  decentraliza- 
tion of  courts  to  such  an  extreme  that  in  many  jurisdictions  the  clerks 
are  practically  independent  functionaries  over  whom  courts  have  little 
real  control.  In  some  jurisdictions  the  clerks  of  supreme  and  appellate 
courts  are  elective  officers.  It  is  a pretty  general  practice  to  have  an 
elective  clerk  of  the  superior  court  of  general  jurisdiction  (by  whatever 
name  called)  in  each  county.  Each  clerk  is  not  merely,  to  a consider- 
able degree,  independent  of  effective  judicial  control,  but  he  is  wholly 
independent  of  every  other  clerk.  No  one  is  charged  with  supervision 
of  this  important  branch  of  the  judicial  system.  It  is  no  one’s  business 
to  make  this  part  of  the  system  effective,  to  obviate  waste  and  needless 
expense  and  to  promote  improvement.  The  fee-system  has  often 
tended  to  make  earning  and  collection  of  fees  one  of  the  chief  objects 
which  engrosses  the  clerk’s  attention.  There  is  much  unnecessary  du- 
plication and  recopying  of  papers ; judicial  records  are  needlessly 
prolix,  and  hence  unduly  expensive.  These  and  kindred  matters  may 
be  met  best  by  organization  of  the  purely  business  side  of  the  courts, 
and  providing  for  competent  and  efficient  supervision  thereof. 

“There  is  room  for  difference  of  opinion,  no  doubt,  with  respect  to 
the  proposition  to  include  the  tribunals  for  dispatch  of  petty  causes  in 
the  scheme  for  unification  of  the  judicial  system.  It  was  the  original 
plan  of  those  who  drew  the  judicature  act  in  England  to  incorporate  the 
county  courts  in  their  scheme.  (Report  of  Judicature  Commission, 
1869,  p.  13.)  This  portion  of  their  plan  failed  of  adoption.  But  the 
reasons  in  support  of  it  are  most  cogent.  The  municipal  court  of  Chi- 
cago has  shown  that  it  is  perfectly  feasible  to  administer  a much  higher 
grade  of  justice  in  petty  causes  than  that  dispensed  by  justices  of  the 
peace  without  resorting  to  the  cumbrous  and  expensive  machinery  of 
our  superior  courts  of  record.  The  system  of  committing  petty  causes 
to  justices  of  the  peace,  subject  to  appeal  to  some  superior  court,  and 


796 


review  of  its  judgment  by  a court  of  appellate  jurisdiction,  is  too  often 
a denial  of  justice  to  the  weaker  litigant.  It  compels  men  to  forego  just 
claims  against  those  who  can  afford  to  litigate  to  the  end,  because  of 
the  delay  and  expense  involved  in  asserting  them.  Petty  causes  demand 
good  judges  no  less  than  causes  involving  larger  sums.  The  judges  to 
whom  such  causes  are  committed  ought  to  be  of  such  caliber  that  but 
one  review  should  be  necessary,  and  that  confined  to  questions  of  law. 
The  original  reason  for  our  present  system  was  the  desire  to  bring 
justice  to  everyone’s  back  door  in  his  own  locality  at  a time  when  com- 
munication was  slow  and  difficult.  Under  present  conditions  of  travel 
the  result  may  be  reached  in  another  way.  A county  judge,  or  a num- 
ber of  county  judges,  may  go  to  every  part  of  a county  to  try  causes 
and  dispatch  business,  and  there  may  be  as  many  local  offices  for  filing 
papers  and  beginning  causes  as  business  may  require.  Nor  will  such 
plan  involve  undue  expense  through  requiring  additional  judges.  Our 
present  system  involves  waste  of  judicial  power  to  such  extent  that 
more  judges  are  now  employed  in  many  jurisdictions  than  a unified 
and  thoroughly  organized  system  with  a simplified  practice  would  de- 
mand. The  county  judges  would  be  eligible  to  serve  in  any  branch  or 
division  where  their  services  for  the  time  being  might  be  demanded, 
and,  on  the  other  hand,  judges  assigned  to  other  work  might  be  used, 
whenever  necessary,  to  assist  in  disposing  of  petty  litigation. 

“It  may  be  objected,  also,  that  the  scheme  proposed  is  at  variance 
with  our  ideals  of  home  rule  and  local  independence.  But  a loose 
judicial  organization  is  not  necessary  to  home  rule  and  local  administra- 
tion of  justice.  Organization  of  the  courts,  and,  above  all,  organization 
of  the  business  of  the  courts  with  a view  of  making  the  most  of  the 
judicial  machinery,  will  permit  judges  to  go  to  each  locality  where 
business  awaits  them,  dispatch  it,  and  be  sent  somewhere  else  in  ac- 
cordance with  an  intelligent  plan  and  under  the  direction  of  someone 
whose  duty  it  is  to  see  that  the  work  of  the  court  is  provided  for  and 
disposed  of. 

“The  advantages  of  such  an  organization  of  the  courts,  of  judicial 
business  and  of  the  clerical  and  administrative  work  of  the  courts  are 
nine : 

“(1)  In  the  first  place,  it  would  make  a real  judicial  department. 
The  federal  department  of  justice,  under  the  headship  of  the  attorney 
general,  gives  to  the  general  government  something  in  the  line  of  what 
is  proposed.  But  it  is  not  in  accord  with  the  genius  of  our  legal  insti- 
tutions that  one  who  practices  in  the  courts  should  be  head  of  a depart- 
ment comprising  the  courts  and  charged  with  the  supervision  thereof. 
The  several  states  accordingly  have  courts,  but  they  do  not  have  any 
true  judicial  department. 

“(2)  It  would  do  away  with  the  waste  of  judicial  power  involved 
in  our  present  system  of  separate  courts  with  hard  and  fast  personnel. 
Where  judges  are  chosen  for,  and  their  competence  is  restricted  to  rigid 
districts,  or  circuits,  or  courts,  or  jurisdictions,  it  is  a familiar  conse- 
quence that  business  may  be  congested  in  one  court  while  judges  in 
another  are  idle.  Devices  for  exchange  of  judges,  or  invitation  to  sit 
in  another  district,  may  sometimes  mitigate  this  evil  to  some  extent,  but 


797 


they  do  not  reach  its  source.  In  this  respect  the  federal  circuit  courts 
and  circuit  courts  of  appeals  are  a model  of  flexible  judicial  organiza- 
tion. The  judicial  department  should  be  so  organized  that  its  whole 
force  may  be  applied  to  the  work  in  hand  for  the  time  being,  according 
to  the  exigencies  of  that  work. 

“(3)  It  would  do  away  with  the  bad  practice  of  throwing  causes 
out  of  court  to  be  begun  over  again,  in  cases  where  they  are  brought  or 
begun  in  the  wrong  place.  They  may  be  transferred  simply  and  sum- 
marily to  the  proper  branch  or  division,  or  rules  may  provide  that  the 
cause  may  be  assigned  at  the  outset  to  the  place  and  the  division  where 
it  belongs,  and  no  question  of  jurisdiction  of  subject  matter  will  stand 
in  the  way. 

“(4)  It  would  do  away  with  the  great  and  unnecessary  expense 
involved  in  transfer  of  causes,  obviating  all  necessity  of  transcripts, 
bills  of  exceptions,  certificates  of  evidence  and  the  like,  and  permitting 
original  files,  papers  and  documents  to  be  used,  since  each  tribunal,  as 
a branch  or  division  of  the  whole  court,  may  take  judicial  notice  of  all 
files,  papers  and  documents  belonging  to  the  court. 

“(5)  It  would  obviate  all  technicalities,  intricacies  and  pitfalls  of 
appellate  procedure.  An  appeal  would  be  merely  a motion  for  a new 
trial,  or  for  modification  or  vacation  of  the  judgment  before  another 
branch  of  the  same  great  court.  It  would  require  no  greater  formality 
of  procedure  than  any  other  motion. 

“(6)  It  would  do  away  with  the  unfortunate  innovation  upon  the 
common  law  which  obtains  in  many  states  by  which  venue  is  a place 
where  an  action  must  be  begun,  rather  than  a place  where  it  is  to  be 
tried,  so  that  a mistake  therein  may  defeat  an  action  entirely  instead  of 
resulting  merely  in  a change  of  the  place  of  hearing.  This  innovation 
is  especially  unfortunate  when  it  is  applied  to  equity  causes,  where 
originally  there  was  no  venue.  If  all  tribunals  are  parts  of  one  court, 
th*£re  need  be  nothing  beyond  a transfer  of  the  cause.  All  proceedings 
up  to  the  date  thereof  may  be  saved. 

“(7)  It  would  obviate  conflicts  between  judges  of  coordinate 
jurisdiction,  such  as  unhappily  obtain  too  often  in  many  localities  under 
a completely  decentralized  system,  which  depends  wholly  upon  the  good 
taste  and  sense  of  propriety  of  individual  judges,  or  the  slow  process  of 
appeal  to  prevent  such  occurrences.  But  a short  time  since  it  became 
a matter  of  comment  and  criticism  in  one  of  the  great  cities  of  the 
country  that  judges,  who  were  supposed  to  be  trying  causes  with  juries 
only,  would  take  up  divorce  cases  and  dispose  of  them  out  of  the  usual 
order,  although  they  were  supposed  to  be  heard  only  by  the  judges  en- 
gaged in  hearing  equity  causes.  As  most  of  our  courts  are  organized 
at  present,  there  is  nothing  to  prevent  any  judge  trying  any  cause  pend- 
ing in  the  court  he  pleases,  however  foreign  to  the  work  he  and  his  col- 
leagues have  agreed  he  shall  attend  to. 

“(8)  It  would  allow  judges  to  become  specialists  in  the  disposition 
of  particular  classes  of  litigation.  The  prevailing  system  of  rotation  is 
unfortunate.  Usually  where  there  are  a number  of  judges  they  take 
up  in  rotation  civil  trials  with  juries,  equity  causes  and  criminal  causes. 
It  is  becoming  unusual  for  a judge  to  be  kept  continuously  to  any  one 


798 


class  of  causes  so  as  to  become  thoroughly  familiar  therewith.  This 
specialization  was  the  real  advantage  of  separate  courts  of  law  and 
equity.  Instead  of  separation  between  law  and  equity  in  procedure;  the 
desirable  thing  is  specialization  in  administration.  The  way  to  obtain 
this  is  to  organize  the  courts  in  such  way  that  judges  may  be  assigned 
permanently  to  the  work  for  which  they  prove  most  fit.  So  long  as 
they  make  the  assignment  by  agreement  among  themselves,  the  ten- 
dency to  follow  the  line  of  least  resistance  will  result  in  the  unfortunate 
practice  of  periodical  rotation. 

“(9)  Finally,  it  would  bring  about  better  supervision  and  control 
of  the  administrative  officers  connected  with  judicial  administration, 
and  make  it  possible  to  introduce  improved  and  more  business-like 
methods  in  the  making  of  judicial  records  and  the  clerical  work  of  the 
courts. 

“The  foregoing  plan  for  unification  of  the  courts  and  simplification 
of  judicial  organization  would  require  constitutional  amendments  in 
each  jurisdiction.  Hence  the  committee  do  no  more  than  submit  it  to 
the  Association  in  order  that  attention  may  be  called  to  the  advantages 
of  such  an  organization.  Proposals  for  re-organization  of  the  judicial 
system  are  now  agitating  in  several  states,  and  it  seems  desirable  to 
record  the  opinion  of  the  committee  as  to  the  lines  along  which  re- 
organization should  proceed.” 

The  few  elements  in  the  present  Illinois  judicial  system  tending 
toward  unification  have  already  been  pointed  out.  Recapitulated,  these 
elements  are  the  following: 

(1)  In  case  of  disagreement  among  the  circuit  court  judges  as  to 
the  counties  in  which  they  are  severally  to  preside,  the  chief  justice  of 
the  supreme  court  shall  assign  the  judges  to  such  counties  in  their  cir- 
cuits as  he  may  determine.3 

(2)  The  chief  justice  of  the  supreme  court  may  assign  any  circuit 
court  judge  who  is  not  occupied  in  holding  court  in  his  own  circuit  to 
some  other  circuit  when  a necessity  arises  therefor.4 

(3)  Whenever  two  judges  of  any  circuit,  exclusive  of  Cook 
County,  or  a majority  of  the  judges  of  the  circuit  court  of  Cook  County, 
or  the  superior  court  of  Cook  County,  state  in  writing  to  the  supreme 
court  that  the  business  of  their  circuit  requires  the  assistance  of  ad- 
ditional judges,  the  supreme  court  may,  by  written  order,  assign  a judge 
of  another  circuit  (or  of  the  circuit  or  superior  court  of  Cook  County) 
to  duty  in  this  circuit.  This  is  subject  to  the  proviso  that  no  judge  in 
any  circuit  or  superior  court  shall  be  required  to  hold  court  outside  of 
his  circuit  or  Cook  County  when  the  business  of  his  own  court  requires 
his  services.5 

(4)  Statutes  provide  that  county  judges  may  interchange  with 
other  county  judges,  probate  judges,  or  city  judges;6  that  probate 
judges  may  hold  court  for  other  probate  judges,  county  judges,  or  city 
judges;7  that  city  judges  may  interchange  with  each  other  and  with 

3 Jones  & Adding-ton,  Illinois  Statutes  Annotated,  Vol.  2,  Sec.  3067. 

4 Jones  & Addington,  Illinois  Statutes  Annotated,  Vol.  2,  Sec.  3067. 

5 Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  82i. 

6 Hurd’s 'Revised  Statutes,  Chap.  37,  Sec.  215a. 

7 Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  215h. 


799 


county,  probate  and  circuit  judges;8  tha't  circuit  judges  may  hold  court 
for  city  judges  and  interchange  with  each  other,9 

(5)  All  judges  of  courts  of  record,  inferior  to  the  supreme  court, 
are  required  by  the  constitution  to  report  in  writing  to  the  judges  of  the 
supreme  court  such  defects  and  omissions  in  the  laws  as  their  ex- 
perience may  suggest.10 

(6)  Judges  of  the  supreme  court  are  required  by  the  constitution 
to  report  in  writing  to  the  governor  such  defects  and  omissions  in  the 
constitution  and  laws  as  they  may  find  to  exist  together  with  appro- 
priate forms  of  bills  to  cure  such  defects  and  omissions  in  the  laws.* 11 

(7)  The  judges  of  the  circuit  courts  are  required  by  the  consti- 
tution to  report  to  the  next  general  assembly  the  number  of  days  they 
have  held  court  in  the  several  counties  composing  their  respective  cir- 
cuits.12 

We  have  seen  that  these  provisions  do  not,  as  a practical  matter,  go 
very  far  toward  unifying  the  Illinois  judicial  system.  The  statutory 
provision  for  the  interchange  of  judges  is  the  only  one  which  is  utilized 
to  any  appreciable  extent.  In  cases  of  emergency,  the  supreme  court 
at  times  assigns  a judge  from  one  circuit  to  duty  in  another  circuit. 
Such  matters  are,  however,  more  frequently  arranged  by  negotiations 
between  the  different  judges  without  involving  the  supreme  court.  Be- 
yond this,  the  statutory  and  constitutional  provisions  referred  to  are  not 
used  or  are  disregarded.  They  are  ineffective  so  far  as  securing  any 
real  unification  is  concerned. 

One  of  the  strongest  obstacles  in  the  path  of  unification  of  the 
courts  in  Illinois  is  the  method  of  choosing  the  chief  justices  of  the 
various  courts.  Under  the  rules  of  the  supreme  court  the  chief  justice 
is  selected  under  a scheme  of  rotation,  each  judge  serving  for  one  year. 
In  the  appellate  court  the  presiding  justice  is  selected  by  the  three 
judges  of  the  court  for  such  period  of  time  as  they  may  determine.  In 
both  the  circuit  court  of  Cook  County  and  the  superior  court  of  Cook 
County  the  judge  having  the  shortest  unexpired  term  is  by  the  terms  of 
the  constitution,  the  chief  justice.  There  is  no  chief  justice  or  super- 
visory officer  in  the  down-state  judicial  circuits.  With  chief  justices 
selected  in  this  manner  it  is  not  possible  to  develop  any  high  degree  of 
administrative  control  over  the  judicial  machinery. 

The  most  distinct  element  of  unity  in  the  judicial  organization  in 
the  State  of  Illinois  is  that  involved  in  the  statutory  organization  of  the 
municipal  court  of  Chicago.  The  chief  justice  of  this  court  is  elected 
as  such  for  the  entire  length  of  his  term,  and  is  vested  by  statute  with 
a large  degree  of  supervision  over  the  work  of  the  entire  court. 

It  will  be  of  interest  to  note  what  steps  have  been  taken  toward 
unification  in  other  states.  Several  states  have  vested  the  supreme 
court  with  supervisory  control  over  the  inferior  courts.  The  constitu- 
tion of  Michigan13  provides  that  “the  supreme  court  shall  have  a gen- 
eral superintending  control  over  all  inferior  courts”.  Similar  pro- 

8 Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  245. 

9 Hurd’s  Revised  Statutes.  Chap.  37,  Sec.  57. 

10  Constitution  of  1870,  Art.  VI,  Sec.  31. 

11  Constitution  of  1870,  Art.  VI,  Sec.  31. 

12  Constitution  of  18/0,  Art.  VI,  Sec.  31. 

13  Michigan  constitution,  Art.  VII,  Sec.  4. 


800 


visions  are  to  be  found  in  the  constitutions  of  Missouri,14  New 
Mexico,15  and  Wisconsin.10  In  Oklahoma17  the  constitution  provides 
that  “the  original  jurisdiction  of  the  supreme  court  shall  extend  to  a 
general  superintendent  control  over  all  inferior  courts  and  all  commis- 
sions and  boards  created  by  law”.  Similarly  in  Arkansas18  the  supreme 
court  has  a “general  superintending  control  over  all  inferior  courts  of 
law  and  equity”.  In  Colorado,19  North  Dakota,20  South  Dakota,21 
Wyoming22  and  Montana,23  the  supreme  court  is  given  a general  super- 
intending control  over  all  inferior  courts  under  such  regulations  and 
limitations  as  may  be  prescribed  by  law.  In  Louisiana24  and  Iowa,25 
the  supreme  court  is  given  the  power  to  exercise  a supervisory  control 
over  all  inferior  judicial  tribunals. 

In  Missouri,26  in  addition  to  the  general  superintending  control 
over  all  inferior  courts  given  to  the  supreme  court,  it  is  provided  that 
“the  circuit  court  shall  exercise  a superintending  control  over  criminal 
courts,  probate  courts,  county  courts,  municipal  corporation  courts, 
justices  of  the  peace,  and  all  inferior  tribunals  of  each  county  in  their 
respective  circuits”  and  that  the  St.  Louis  Court  of  Appeals  shall  have 
“a  superintending  control  over  all  inferior  courts  of  record”  in  the 
counties  in  which  it  has  jurisdiction. 

Other  states  have  sought  to  secure  unification  by  vesting  in  the 
supreme  court  a fairly  large  amount  of  rule-making  power.  The  con- 
stitutional provisions  in  these  states  will  be  set  forth  in  the  following 
section,  where  the  proposal  to  secure  unity  in  the  judicial  organization 
through  a control  over  the  rule-making  power  is  discussed. 

Other  states  have  sought  to  develop  unity  in  their  system  of  trial 
courts  by  what  may  be  termed  the  single  trial  court  system.  California, 
Arizona,  Indiana  and  Iowa  have  either  a single  trial  court  system  or  a 
system  which  is  essentially  a single  trial  court  system. 

In  view  of  the  fact  that  many  lawyers  have  suggested  that  some 
such  system  be  established  in  Illinois,  it  may  be  of  interest  to  note 
briefly  the  salient  features  of  the  court  organization  in  these  four 
states. 

In  Arizona  and  California  there  is  one  court  in  each  county  exer- 
cising complete  jurisdiction.  In  the  smaller  cotmties  a single  judge 
presides  over  this  court.  In  the  more  populous  counties  more  than  one 
judge  is  required  to  handle  the  business  of  the  court.  In  the  counties 
of  Los  Angeles  and  San  Francisco  in  California  there  are  from  fifteen 
to  twenty  judges*. 

Indiana  likewise  has  what  is  essentially  a single  court  system.  This 
court,  which  is  called  the  circuit  court,  usually  embraces  a single 

14  Missouri  constitution,  Art.  YI,  Sec.  3. 

15  New  Mexico  constitution,  Art.  VI,  Sec.  3. 

16  Wisconsin  constitution,  Art.  VII,  Sec.  3. 

17  Oklahoma  constitution,  Art.  VII,  Sec.  2. 

18  Arkansas  constitution,  Art.  VII,  Sec.  4.  • 

19  Colorado  constitution,  Art.  VI,  Sec.  2. 

20  North  Dakota  constitution,  Art.  IV,  Sec.  86. 

21  South  Dakota  constitution,  Art.  V,  Sec.  2. 

22  Wyoming  constitution,  Art.  V,  Sec.  2. 

23  Montana  constitution,  Art.  VIII,  Sec.  2. 

24  Louisiana  constitution,  Art.  94. 

25  Iowa  constitution,  Art.  V,  Sec.  4. 

26  Missouri  constitution,  Art.  VI,  Secs.  23,  12. 


801 


county.  In  a few  instances,  however,  two  small  counties  have 
been  combined  to  form  a single  circuit.  The  circuit  court  in  Indiana 
has  complete  jurisdiction  in  all  matters  and  in  most  counties  is  the  only 
court  of  record.  In  some  of  the  larger  communities,  however,  there 
have  been  established  additional  trial  courts  with  extensive  original 
jurisdiction.  Of  these  additional  courts  the  superior  court  has  civil 
jurisdiction,  the  criminal  court  criminal  jurisdiction,  and  the  probate 
court  jurisdiction  over  probate  matters. 

Iowa  has  what  is  known  as  the  district  court  system.  The  district 
comprises  one  or  more  counties.  From  two  to  five  judges  are  elected 
for  each  district,  according  to  its  size.  The  judges  move  in  rotation 
over  the  district.  This  court  has  complete  jurisdiction  over  all  matters, 
and,  except  in  the  few  cities  having  superior  courts  or  municipal  courts 
or  both,  it  is  the  only  court  of  record.  The  clerks  of  the  district  court 
are  county  officers  and  have  a permanent  office  at  their  respective 
county  seats.  The  clerk  is  empowered  to  act  as  to  all  formalities  in 
probate  matters.  Under  certain  circumstances  he  may  make  orders, 
but  this  power  is  seldom  exercised. 

Reports  from  these  four  states  seem  to  indicate  that  the  system  is 
generally  regarded  as  satisfactory.  In  California  and  Arizona  there  is, 
of  course,  a waste  in  maintaining  separate  courts  in  sparsely  settled 
counties.  This  difficulty  is  overcome  to  a certain  extent  in  Indiana  by 
combining  smaller  counties  into  one  circuit,  and  in  Iowa  by  combining 
several  counties  into  a district. 

The  proposal  for  a single  trial  court  system  in  Illinois  has  been 
much  discussed  by  the  members  of  the  bar.  Under  such  a system  there 
may  be  elected  at  least  one  judge  in  each  county,  this  judge  to  ex- 
ercise the  combined  jurisdiction  of  the  present  circuit,  county,  city  and 
probate  judges.  In  the  larger  counties  it  would,  of  course,  be  neces- 
sary to  elect  more  than  one  judge.  The  following  arguments  have 
been  advanced  in  behalf  of  such  a system : 

(1)  It  will  do  away  with  litigation  involving  jurisdictional  ques- 
tions. 

(2)  It  will  effect  a consolidation  of  clerks’  offices,  thereby  promot- 
ing efficiency  and.  economy. 

(3)  It  will  result  in  a more  speedy  disposition  of  litigation,  owing 
to  the  fact  that  the  judge  will  always  be  at  home  and  available  to  dis- 
pose of  cases  brought  before  him.  The  proponents  of  this  system  also 
suggest  the  abolition  of  terms  of  court.  The  proposed  single  court  is  to 
sit  continuously. 

(4)  It  will  effect  complete  unification  of  the  rules  of  practice  and 
procedure  in  trial  courts  of  record. 

(5)  It  will  enable  the  smaller  counties  to  obtain  a more  effective 
political  control  over  the  judge.  It  is  contended  that  small  counties  in 
large  circuits  have  no  voice  whatever  in  the  selection  of  circuit  judges 
and  that,  not  being  dependent  upon  the  smaller  counties  for  re-election, 
some  circuit  judges  are  not  responsive  to  the  needs  of  such  counties. 
This  argument  will  not,  of  course,  apply  if  the  present  circuit  organiza- 
tion of  Illinois  is  taken  as  the  basis  of  a unified  court  organization. 


802 


The  following  objections  have  been  made  to  the  single  court 
system : 

(1)  There  are  four  counties  in  this  state  having  a population  of 
less  than  ten  thousand,. and  sixteen  counties  of  less  than  fifteen  thou- 
sand. There  is  a relatively  small  amount  of  judicial  business  in  coun- 
ties of  this  type.  It  is  estimated  that  in  some  of  the  rural  counties 
of  this  state  the  combined  work  of  the  county  and  circuit  courts 
would  not  take  up  one-third  of  the  time  of  a single  judge.  A single 
judge  system  would  work  extravagantly  in  such  counties,  were  the 
Arizona  or  California  system  to  be  adopted.  If,  however,  the  less 
populous  counties  were  combined  as  in  Iowa  or  Indiana  this  argument 
would  lose  much  of  its  force.  Any  scheme  of  combining  counties  must, 
of  course,  provide  for  the  speedy  handling  of  probate  matters  in  each 
county. 

(2)  Many  lawyers  seem  to  be  quite  unwilling  to  appear  before  the 
same  judge  in  all  proceedings.  This  unwillingness  is  based  in  part  on 
the  fact  that  lawyers  are  oftentimes  not  in  harmony  with  one  judge  and 
on  this  account  like  to  be  able  to  change  from  one  judge  to  another. 
The  present  circuit  court  system,  as  well  as  the  present  system  of 
courts  of  overlapping  jurisdiction  makes  it  comparatively  easy  to 
change  from  one  judge  to  another  without  asking  for  a change  of 
venue.  This  objection  does  not  seem  to  be  borne  out  by  reports  from 
other  states.  Iowa,  of  course,  with  its  district  court  system,  has  some- 
what the  same  flexibility  in  this  respect  as  the  present  Illinois  circuit 
system,  in  that  although  there  is  but  one  court,  there  are  several  judges 
in  that  court.  Lawyers  in  Arizona,  California  and  Indiana,  however, 
point  out  that  the  necessity  of  appearing  before  the  same  judge  in  all 
proceedings  causes  no  serious  difficulty.  In  these  states  changes  of 
venue  are  obtained  as  a matter  of  course. 

(3)  The  county  is  the  unit  of  the  party  political  organization.  If 
a single  trial  court  system  for  each  county  is  adopted,  the  election  of 
the  judge  of  this  court  will  be  more  readily  subject  to  political  control. 
On  the  other  hand  the  present  judicial  circuit  serves  one  purpose  only, 
and  that  is  the  election  of  circuit  judges.  It  has  been  suggested  that 
more  satisfactory  results  will  be  obtained  if  judges  are  elected  from  a 
circuit  or  district  which  is  not  the  unit  of  political  organization.  Of 
course  the  election  of  judges  for  a longer  term  and  at  times  different 
from  the  election  of  other  officers,  as  is  the  case  under  the  present  con- 
stitution of  Illinois,  meets  to  some  extent  the  objection  here  urged. 

While  no  plans  for  a completely  unified  state  judicial  system  have 
yet  been  adopted  in  this  country,  a number  of  proposals  have  been 
made  in  recent  years.  One  of  the  first  specific  proposals  is  a “First 
Draft  of  a State-Wide  Judicature  Act,”  issued  as  Bulletin  No.  VII  of 
the  American  Judicature  Society  in  1914.  A plan  for  a unified  court 
was  submitted  to  the  Mississippi  State  Bar  Association  in  1917  by  a 
committee  of  that  body  [See  Journal  of  the  American  Judicature  So- 
ciety, Vol.  I,  p.  15  (June,  1917).]  The  Phi  Delta  Phi  Club  of  New 
York  prepared  an  elaborate  report,  with  a draft  of  a proposal  for  a 
unified  judicial  system,  and  this  report  was  published  in  the  Annals  of 
the  American  Academy  of  Political  and  Social  Science  for  September, 


803 


1917.  The  text  of  the  proposal  will  also  be  found  in  the  Journal  of  the 
American  Judicature  Society  for  October,  1917. 

A commission  appointed  by  the  Oregon  Supreme  Court,  under 
legislative  authorization,  to  report  plans  for  the  improvement  of  the 
judicial  system,  reported  unanimously  in  favor  of  certain  matters 
which  would  introduce  a small  element  of  unity  into  the  judicial  sys- 
tem ; two  members  reported  in  favor  of  a completely  reorganized  and 
unified  judicial  system.  [See  Journal  of  the  American  Judicature 
Society,  Vol.  2,  p.  145  (February,  1919).]  Such  a judicial  reorganiza- 
tion may  be  accomplished  by  statute  in  Oregon,  for  in  that  state  since 
1910,  the  judicial  power  of  the  state  is  “vested  in  one  Supreme  Court 
and  in  such  other  courts  as  may  from  time  to  time  be  created  by  law.” 

A proposed  constitutional  amendment  for  a unified  court  was  sub- 
mitted to  the  Oklahoma  State  Bar  Association  in  1919  by  a commit- 
tee of  that  body.  This  proposal  is  detailed  in  character.  The  latest 
published  proposal  for  a unified  court  is  one  prepared  by  the  American 
Judicature  Society  and  published  in  the  December,  1919,  number  of 
the  National  Municipal  Review.  This  proposal  contemplates  leaving 
a large  amount  of  discretion  to  the  legislature  in  organizing  a state 
judicial  system. 

It  has  also  been  suggested,  in  connection  with  the  proposal  for 
unification,  that  if  it  is  not  desired  to  go  so  far  as  to  grant  a wide  super- 
intending control  to  the  supreme  court,  it  might  be  wise  to  vest  in  the 
supreme  court  the  right  to  issue  writs  of  prohibition.  Such  a power  is 
vested  in  the  supreme  courts  of  the  following  states  by  constitutional 
provision : Ohio,  West  Virginia,  Idaho,  Utah,  South  Carolina,  Ari- 

zona, California,  Louisiana,  Nevada,  Washington,  Wyoming,  Delaware 
and  Arkansas. 


Rules  of  court.  Proposals  to  confer  rule-making  power  upon 
the  courts  will  be  placed  before  the  convention.  From  a logical  point 
of  view  such  proposals  should  be  discussed  in  connection  with  the  uni- 
fied court,  since  the  conferring  upon  the  courts  of  the  power  to  make 
rules  of  procedure  is  one  of  the  more  important  methods  of  securing 
unity.  While  at  common  law  the  rule-making  power  was  to  a certain 
extent  in  the  courts,  this  power  has  been  in  large  part  absorbed  by  the 
legislature.  Legislatures  usually  do  one  of  two  things : they  either  lay 
down  very  meager  rules  on  the  subject  or  else  formulate  a code  con- 
sisting of  hundreds  of  sections,  as  in  New  York.  In  recent  years  there 
has  been  a well  defined  movement  to  take  this  power,  in  part  at  least, 
from  the  legislature  and  confer  it  upon  the  courts.  This  movement  has 
taken  two  forms.  One  school  has  sought  to  take  the  rule-making  power 
from  the  legislature  in  its  entirety.  In  other  words,  it  advocates  the 
development  of  the  rule-making  power  in  the  courts  as  a means  of  tak- 
ing over  the  entire  field  of  procedural  regulation.  A second  group  has 
taken  a middle  ground.  The  contention  of  this  group  is  that  the  pres- 
ent rule-making  power  should  be  centralized  in  the  judicial  organization 
and  somewhat  extended,  not  with  a view  of  vesting  in  the  courts  com- 


804 


plete  power  over  procedural  regulations,  but  primarily  as  a means  of 
securing  a unified  control  over  the  judicial  structure. 

In  Illinois  each  court  may  make  rules  for  the  conduct  of  its  busi- 
ness. Such  rules  must,  however,  be  consistent  with  the  general  law.27 
The  details  of  procedure  are  largely  embodied  in  the  Illinois  statutes. 
A large  degree  of  rule-making  power  has,  however,  been  given  to  the 
municipal  court  of  Chicago,  and  to  various  administrative  tribunals 
such  as  the  court  of  claims,  the  industrial  commission,  and  the  public 
' utilities  commission.  No  court  possesses  power  to  make  rules  for  other 
courts.28  Within  the  last  few  years  bills,  sponsored  by  the  Illinois  Bar 
Association,  and  seeking  to  vest  in  the  supreme  court  a large  degree  of 
rule-making  power,  have  been  introduced  in  the  general  assembly  at 
each  of  its  regular  sessions. 

The  vesting  of  a certain  degree  of  rule-making  power  in  the  courts 
is  now  an  accomplished  fact  in  several  jurisdictions.  In  England  the 
judicature  act  of  1873  gave  the  courts  a large  degree  of  rule-making 
power.29  The  supreme  court  of  the  United  States  has  a large  degree  of 
rule-making  power  and  has  drafted  the  equity  rules  for  the  federal 
courts.  In  Colorado  the  rule-making  power  was  given  to  the  supreme 
court  by  statute  in  1013. 30  Both  there  and  in  England  the  first  rules 
drafted  by  the  court  met  with  criticism.  They  were  subsequently 
changed  and  now  appear  to  be  satisfactory.  The  New  Jersey  courts 
have  exercised  the  rule-making  power  since  1912. 31  Section  5 of 
Article  VII  of  the  constitution  of  Michigan  provides  that  “the  supreme 
court  shall  by  general  rules  establish,  modify  and  amend  the  practice  in 
such  court  and  in  all  other  courts  of  record,  and  simplify  the  same.” 
Information  from  Michigan  indicates  that  this  power  has  been  rather 
sparingly  exercised. 

The  question  of  the  constitution  of  the  rule-making  body  has  oc- 
casioned considerable  discussion.  The  bills  introduced  in  Illinois  vested 
this  power  in  the  supreme  court.  In  Michigan,  Colorado  and  New 
Jersey  this  power  is  vested  in  the  supreme  court ; in  Michigan  by  the 
constitution,  and  in  Colorado  and  New  Jersey  by  statute.  Objection 
has,  however,  been  made  to  vesting  the  rule-making  power  in  the  su- 
preme court.  It  is  argued  that  a body  as  busy  as  most  supreme  courts 
are  is  likely  to  fail  to  exercise  the  power.  The  Michigan  supreme  court 
has,  for  instance,  rather  sparingly  exercised  its  power.  Furthermore 
it  is  contended  that  many  of  the  rules  to  be  formulated  pertain  to  trials 
and  that  members  of  the  supreme  court  may  not  be  conversant  with  the 
needs  of  the  trial  court.  In  Colorado  and  England  the  rules  drafted  by 
the  highest  courts  proved  unsatisfactory,  but  the  revisions  drafted  with 
the  assistance  of  trial  judges  and  lawyers  worked  well.  It  has  been 
suggested  that  if  all  of  the  courts  are  represented  in  the  rule-making 
body,  that  body  is  likely  to  frame  more  successful  rules  than  would  be 
framed  by  the  members  of  a single  court.  The  American  Judicature 
Society  in  its  plan  for  a unified  court  proposes  to  ve;;t  the  rule-making 

27  Rozier  v.  Williams,  92  111.  187.  (1879). 

28  Murray  v.  Whittaker,  17  111.  230.  (1855). 

29  Supreme  Court  Judicature  Act,  Sec.  75. 

30  Laws  of  1913,  page  445. 

31  Laws  of  1912,  Chap.  231,  Sec.  32. 


805 


power  in  a council  composed  of  the  chief  justice  and  heads  of  the  va- 
rious divisions  of  the  unified  court.32 

The  question  of  the  degree  of  rule-making  power  to  be  vested  in 
the  courts  has  already  been  raised.  The  two  tendencies  have  been 
pointed  out.  Mr.  Hiram  T.  Gilbert,  in  a pamphlet  on  “A  Proposed 
Judiciary  Article  for  the  Constitution  of  1920  with  Explanatory 
Notes”  proposes  to  divest  the  general  assembly  of  practically  all 
control  over  judicial  procedure.33  In  Colorado  and  New  Jersey  the 
courts  can  apparently  alter  or  amend  existing  statutes.  In  1917  a reso- 
lution to  submit  a constitutional  amendment  giving  the  courts  exclusive 
power  to  make  procedural  rules  was  introduced  in  the  California  senate. 

The  plan  of  the  American  Bar  Association,  on  the  other  hand,  pro- 
vides that  the  general  assembly  should  lay  down  the  general  outlines  of 
the  procedural  system,  the  courts  to  supply  the  detail.  The  bill  spon- 
sored by  the  Illinois  Bar  Association  contained  many  details  regulating 
procedure  and  limited  the  power  of  the  supreme  court  to  that  of  mak- 
ing rules  not  inconsistant  with  the  statute. 

One  difficulty  should  be  pointed  out  in  connection  with  the  pro- 
posal to  take  from  the  legislature  all  power  with  respect  to  judicial 
procedure.  In  our  system  of  law  substantive  rights  are  often  tied  up 
with  procedural  rules,  and  the  adoption  of  such  a scheme  as  Mr. 
Gilbert  proposes  would  create  in  our  legal  system  an  uncertain  boun- 
dary between  legislation  affecting  substantive  rights  and  rules  of  pro- 
cedure promulgated  by  the  courts.  If,  on  the  other  hand,  some  more 
conservative  provision  for  vesting  rule-making  power  in  the  courts  is 
adopted,  such  a difficulty  is  less  likely  to  arise. 

Statutes  conferring  rule-making  power  upon  the  courts  raise 
serious  constitutional  questions.  Article  III  of  the  constitution  of 
1870  provides  that  the  powers  of  government  shall  be  divided  in  three 
departments,  the  legislative,  the  executive  and  the  judicial  and 
that  “no  person  or  collection  of  persons  being  one  of  these  de- 
partments shall  exercise  any  power  properly  belonging  to  either  of  the 
others,  except  as  hereinafter  expressly  directed  or  permitted”.34  A 
statute  conferring  a wide  power  upon  the  courts  to  regulate  their  own 
procedure  may,  therefore,  be  open  to  the  objection  that  it  confers 
legislative  power  upon  the  judicial  department.  A statute  in  Nebraska 
enacted  when  the  supreme  court  judges  also  sat  as  district  judges 
gave  to  the  judges  of  the  supreme  court  power  to  make  rules  for  both 
the  supreme  court  and  the  district  court.  After  the  judicial  organization 
was  so  changed  that  the  supreme  court  judges  no  longer  sat  in  the 
district  court,  it  was  assumed  in  Hunter  v Union  Life  Insurance  Co., 
58  Neb.  203,  that  the  judges  of  the  supreme  court,  notwithstanding 
the  statute,  had  rio  power  to  make  rules  for  the  district  court.  On  the 
other  hand,  in  the  case  of  the  City  of  Chicago  v Coleman,  254  111.  338 
the  court  said,  in  answer  to  the  argument  that  the  general  assembly 
could  not  delegate  power  to  the  municipal  court  of  Chicago  to  pre- 
scribe forms  of  entries  of  orders,  that  “the  power  to  make  rules  of 

32  Bulletin  Vila,  American  Judicature  Society,  page  75. 

33  Gilbert,  Hiram  T.,  A Proposed  Judiciary  Article  for  the  Constitution  of 
1920  with  Explanatory  Notes,  Article  VI,  Section  2,  pages  9-10. 

34  Constitution  of  1870,  Article  III. 


806 


court  is  not  legislative  but  judicial”.  The  court  in  this  case,  however, 
was  discussing  the  power  of  the  court  to  make  rules  for  the  conduct 
of  its  own  business  and  not  its  power  to  make  rules  for  other  courts. 
If,  therefore,  it  is  proposed  to  give  to  one  court  the  power  to  make 
rules  for  other  courts,  a constitutional  change  would  seem  to  be  in- 
volved.35 


System  of  appeals.  Proposals  will  be  made  to  alter  the  present 
system  of  appeals  in  Illinois.  The  present  practice  of  assigning  cir- 
cuit court  judges  to  duty  on  the  appellate  court  is  unsatisfactory  to 
many  members  of  the  bar.  There  is  a strong  feeling  that  if  the  ap- 
pellate court  is  to  be  retained,  provision  should  be  made  for  the  elec- 
tion of  appellate  court  judges  by  the  voters  of  the  appellate  court 
district  in  which  they  sit.  Another  proposal  involves  the  abolition  of  the 
appellate  court  altogether,  an  increase  in  the  number  of  judges  of  the 
supreme  court,  and  the  division  of  the  supreme  court  into  sections. 

In  this  connection  it  will  prove  of  interest  to  note  the  measures 
which  have  been  adopted  in  other  states  to  take  care  of  the  rapidly 
increasing  amount  of  work  in  appellate  tribunals.  In  the  following 
states  the  highest  court,  by  constitutional  provision,  sits  in  sections,  or 
is  authorized  to  do  so:  California,36  Colorado,37  Florida,38  Kansas,39 
Mississippi,40  and  Missouri.41  The  same  result  is  obtained  in  Ala- 
bama,42 Georgia,43  Iowa,44  Ohio,45  and  Oregon46  by  statute.  The 
constitution  of  Washington47  gives  the  legislature  power  to  provide 
for  departments. 

The  constitutions  of  the  following  states  have  established  in- 
termediate appellate  courts  between  the  trial  court  and  the  highest 
court:  California,48  Georgia,49  Louisiana,50  Missouri,51  New  Jersey,52 

New  York,  53  Ohio,54  and  Texas.55  In  Alabama,56  Indiana,57  Penn- 
sylvania, 58  and  Tennessee,59  such  courts  have  been  created  by  statute. 


35  For  a discussion  of  the  constitutionality  of  conferring  the  rule-making 
power  upon  the  courts  see  Pound:  Regulation  of  Judicial  Procedure  by  Rules 
of  Court.  10  111.  Law  Review  163.  (1915). 

36  California  constitution,  Art.  VI,  Sec.  2. 

37  Colorado  constitution,  Art.  VI,  Sec.  5. 

38  Florida  constitution,  Art.  V,  Sec.  4. 

39  Kansas  constitution,  Art.  Ill,  Sec.  2. 

40  Mississippi  constitution,  Art.  VI,  Sec.  177  b. 

41  Missouri  constitution  Art.  VI.  amendment  of  1890,  Sec.  1. 

42  Civil  Code,  Sec.  5849  (Acts)  of  1903,  p.  493). 

43  Parker’s  Code  of  Georgia  (1914).  Secs.  6110-6112. 

44  Code  of  Iowa  (Supplement  of  1913),  Sec.  194,  p.  99. 

45  Page  & Adams  Ann.  General  Code  (1912),  Sec.  1467, 

46  Laws  of  1913,  p.  294. 

47  Washington  constitution,  Art.  IV,  Sec.  2. 

48  California  constitution  Art.  VI,  Sec.  4. 

49  Georgia  constitution  Art.  VI.  I,  Sec.  1. 

50  Louisiana  constitution  Sec.  84. 

51  Missouri  constitution  Art.  VI,  Sec.  1. 

52  New  Jersey  constitution  Art.  VI,  I.  Sec.  1. 

53  New  York  constitution  Art.  VI,  Sec.  2. 

54  Ohio  constitution  Art.  IV,  Sec.  1. 

55  Texas  constitution  Art.  V,  Sec.  1. 

66  Acts  of  1911,  p.  319. 

57  Burns’  Annotated  Statutes,  Sec.  1382,  p.  798 

58  Pepper  & Lewis’  Digest,  Sec.  6895. 

59  Shannon’s  Annotated  Code,  (1917),  Sec.  6312-. 


807 


From  the  above  it  will  be  seen  that  the  following  states  have  adopted 
both  expedients:  Alabama,  California,  Georgia,  Missouri  and  Ohio. 

In  the  states  listed  below  membership  in  the  highest  court  has  been 
increased  since  1900  as  pointed  out : 

Kansas,  1900  (from  two  to  seven) 

Florida,  1902  (from  three  to  six) 

West  Virginia,  1902  (from  four  to  five) 

Wisconsin,  1903  (from  five  to  seven) 

Colorado,  1904  (from  three  to  seven) 

Nebraska,  1908  (from  three  to  seven) 

North  Dakota,  1908  (from  three  to  five) 

South  Carolina,  1910  (from  three  to  four) 

Ohio,  1912  (from  five  to  seven) 

Mississippi,  1914  ( from  three  to  six) 

Certain  states  have  attempted  to  relieve  the  supreme  court  by 
providing  for  the  finality  of  decisions  of  the  intermediate  court  of 
appeals  in  a manner  somewhat  analogous  to  that  of  the  Illinois  cer- 
tiorari law  of  1909.  This  arrangement  is  effected  by  the  constitutions 
of  California,60  Georgia,61  Missouri,62  Louisiana,63  New  York,64  and 
Ohio.65  It  is  accomplished  by  statute  in  Alabama,66  Indiana,67  Penn- 
sylvania,68 Tennessee,69  and  Texas.70 

Virginia  has  provided,  as  a remedy  for  congestion  in  its  appellate 
system,  the  creation  of  a special  court  of  appeals.  Section  89  of 
Article  VI  of  the  constitution  of  1902  provides  that  “the  general  as- 
sembly may,  from  time  to  time,  provide  for  a special  court  of  appeals 
to  try  any  cases  on  the  docket  of  the  supreme  court  of  appeals  in  re- 
spect to  which  a majority  of  the  judges  are  so  situated  as  to  make  it 
improper  for  them  to  sit ; and  also  to  try  any  cases  on  said  docket 
which  cannot  be  disposed  of  with  convenient  dispatch.  The  said 
special  court  shall  be  composed  of  not  less  than  three  nor  more  than 
five  of  the  judges  of  the  circuit  courts  and  city  courts  of  record  in 
cities  of  the  first  class,  or  of  the  judges  of  either  of  said  courts,  pr  of 
any  of  the  judges  of  said  courts,  together  with  one  or  more  of  the 
judges  of  the  supreme  court  of  appeals.”  Information  from  Virginia 
indicates  that  thus  far  there  has  been  no  occasion  to  make  use  of  this 
provision.  Under  a provision  in  the  constitution  of  1869,  similar  to 
that  in  the  present  constitution,  such  a separate  court  of  appeal  is  re- 
ported to  have  been  organized,  and  to  have  done  excellent  work. 

New  York  and  Ohio  have  also  made  provision  for  relieving  the 
supreme  court  in  case  its  work  become  congested.  In  New  York  the 


60  California  constitution  Art.  VI,  Sec.  4. 

01  Georgia  constitution  Art.  VI,  Sec.  2,  Pars.  V and  IX. 

62  Missouri  constitution  Art.  VI,  Sec  12. 

63  Louisiana  constitution  Sec.  101. 

64  New  York  constitution  Art.  VI,  Sec.  9. 

65  Ohio  constitution  Art.  IV,  Sec.  6. 

66  Alabama  general  laws  1911,  p!  95. 

67  Indiana  Acts  1891,  p.  39  as  amended  by  Acts  1893,  p.  29;  Acts  1901,  p. 
565;  Acts  1907,  p.  237. 

68  Purdon’s  Digest,  Vol.  4,  p.  4506  ft. 

69  Thompson’s  Shannon’s  Code,  Secs.  6321  a,  6321  a-1,  6321  a-2,  6322. 
70McEachin’s  Texas  Civil  Stats.  Ann.  Arts.  1521-2,  1591. 


80S 


constitution  provides  that  “whenever  and  as  often  as  a majority  of  the 
judges  of  the  court  of  appeals  shall  certify  to  the  governor  that  said 
court  is  unable,  by  reason  of  the  accumulation  of  causes  pending 
therein,  to  hear  and  dispose  of  the  same  with  reasonable  speed,  the 
governor  shall  designate  not  more  than  four  justices  of  the  supreme 
court  to  serve  as  associate  judges  of  court  of  appeals”.  In  Ohio 
the  general  assembly  may,  on  application  of  the  supreme  court,  provide 
for  the  appointment  of  a commission  of  five  members  to  dispose  of 
such  part  of  the  supreme  court  docket  as  may  be  assigned  to  it.  The 
commissioners  are  appointed  by  the  governor  with  the  advice  and  con- 
sent of  the  senate.  Their  term  cannot  exceed  two  years,  and  the  com- 
mission cannot  be  created  oftener  than  once  in  ten  years.71 

Reports  from  Ohio  indicate  that  this  commission  has  been  used  on 
two  occasions,  first  from  1875  to  1879,  and  later  in  1884  and  1885. 
Both  commissions  consisted  of  able  men.  There  is,  however,  a ten- 
dency among  the  Ohio  bar  not  to  give  the  opinions  of  these  commis- 
sions quite  the  standing  of  the  opinions  of  the  Supreme  Court.  In 
citing  them  lawyers  are  careful  to  call  attention  to  the  fact  that  it  is 
the  commission  and  not  the  Supreme  Court  that  is  speaking. 

Proposals  will  also  be  made  to  insert  into  the  constitution  a pro- 
vision seeking  to  place  a limit  upon  the  number  of  appeals.  We  have 
already  seen  that  in  cases  begun  in  justice  of  the  peace  courts  and 
in  probate  matters  two  trials  and  Cwo  reviews  by  appellate  courts  are 
possible.  Cases  started  in  the  county,  circuit  and  city  courts  may 
conceivably  be  reviewed  by  two  appellate  tribunals.  Ohio,  by  consti- 
tutional amendment  in  1912,  sought  to  prevent  the  multiplicity  of  ap- 
peals by  making  the  decisions  of  the  intermediate  court  of  appeals 
final,  “in  all  cases,  except  cases  involving  questions  arising  under  the 
constitution  of  the  United  States  or  of  this  state,  cases  of  felony,  cases 
of  which  it  has  original  jurisdiction,  and  cases  of  public  or  great 
general  interest  in  which  the  supreme  court  may  direct  any  court  of 
appeals  to  certify  its  record  to  that  court.”  In  other  words,  Ohio  has 
sought  to  accomplish  by  constitutional  provision  what  Illinois  and 
other  states  have  done  by  statute. 

In  this  connection  attention  is  invited  to  the  fact  that  under  the 
constitution  of  1870  appeals,  except  in  a limited  number  of  cases, 
are  now  a statutory  rather  than  a constitutional  matter.  There  would 
seem  to  be  a constitutional  right  of  appeal  to  the  supreme  court  only 
in  “all  criminal  cases  and  cases  in  which  a franchise  or  freehold,  or 
the  validity  of  a statute  is  involved”.72 

Should  the  convention  adopt  the  plan  of  organizing  the  judicial 
work  of  the  state  into  county  units,  with  a consolidation  into  one 
court  of  the  jurisdiction  of  the  present  probate,  county,  city  and  cir- 
cuit courts,  and  if  the  present  appellate  court  system  is  retained,  it 
will,  of  course,  be  necessary  to  make  other  arrangements  for  the  selec- 
tion of  appellate  court  judges. 


71  Constitution  of  Ohio,  Art.  IV.  Sec.  22. 

72  Constitution  of  1870,  Art.  VI,  Sec.  Ll.  Also  se$  Young  v Stearns,  91 
111.  221  (1878). 


809 


ProDOsals  of  a Less  Fundamental  Character. 

It  is  now  proposed  to  discuss  briefly  certain  proposals  of  changes 
which  will  be  suggested  to  the  convention  involving  technical  modifi- 
cations of  the  present  system,  provided  this  system  is  substantially  re- 
tained in  the  new  constitution. 

Probate  Matters. 

(a)  Testamentary  trusts.  The  question  of  testamentary  trusts 
will  undoubtedly  come  before  the  convention.  Under  the  present  con- 
stitution the  supreme  court  has  held  that  the  administration  of  testa- 
mentary trusts  is  a chancery  matter  and  not  a probate  matter,  and  that 
the  general  assembly  can  not  extend  the  jurisdiction  of  probate  courts 
to  include  the  administration  of  such  trusts.  There  is  a strong  feeling 
among  a large  number  of  members  of  the  bar  that  probate  courts 
should  be  empowered  to  administer  testamentary  trusts,  or,  at  least, 
that  the  jurisdiction  of  probate  courts  should  be  so  defined  as  to  give 
the  general  assembly  power  to  vest  such  jurisdiction  in  them. 

Should  a single  trial  court  system  be  established,  the  problem  of 
testamentary  trusts  would  at  once  be  solved. 

In  New  York  the  surrogate’s  court,  which  corresponds  to  our 
probate  court,  has  statutory  jurisdiction  to  direct  and  control  the  con- 
duct and  settle  the  accounts  of  testamentary  trustees,  to  remove  testa- 
mentary trustees,  and  to  appoint  a successor  in  place  of  a testamentary 
trustee.  It  also  has  power  to  enforce  the  payment  of  debts  and  lega- 
cies ; the  distribution  of  the  estates  of  decedents,  and  the  payment  or 
delivery  by  executors,  administrators,  and  testamentary  trustees,  of 
money  or  other  property  in  their  possession  belonging  to  the  estate  or 
fund.73 

In  Massachusetts  the  probate  court  is  given  jurisdiction  of  all 
cases  and  matters  relative  to  the  administration  of  trusts  which  are 
created  by  will.74 

(b)  Construction  of  wills.  Suggestion  will  be  made  that  author- 
ity to  construe  wills  should  also  be  vested  in  the  probate  court.  Under 
the  existing  system  the  construction  of  a will  is  a matter  of  chancery 
jurisdiction.  Some  lawyers  feel  that  if  the  existing  system  of  probate 
courts  is  to  be  retained,  these  courts  should  be  clothed  with  authority 
to  construe  wills,  at  least  concurrently  with  courts  of  chancery. 

In  New  York  the  surrogate’s  court  has  jurisdiction  to  determine 
the  validity,  construction,  or  effect  of  any  distribution  of  property  con- 
tained in  any  will,  whenever  a special  proceeding  is  brought  for  that 
purpose,  or  whenever  it  is  necessary  to  make  such  determination  as  to 
any  will  in  a proceeding  pending  before  the  court,  or  whenever  any 
party  to  a proceeding  for  the  probate  of  any  will  who  is  interested 
thereunder  demands  such  determination  in  such  proceeding.75 

(c)  Trials  de  novo.  Under  the  present  statute  appeals  from  the 
probate  court  and  from  the  county  court  in  probate  matters  go,  in 
most  cases,  to  the  circuit  court,  where  a trial  de  novo  is  ha  l.  In  the 


73  Laws  of  New  York,  1914,  Chap.  443. 

74'Revised  Laws  of  Massachusetts,  1902,  Ch.  162,  Sec.  5,  p.  1423. 
75  Laws  of  New  York,  1914,  Chap.  443. 


810 


down  state  circuits  such  trials  de  novo  are  comparatively  few.  In 
Cook  County,  however,  there  were  a sufficient  number  of  appeals  from 
the  probate  court  in  1918  to  occupy  a large  part  of  the  judicial 
time  of  a circuit  court  judge  during  that  year.  In  view  of  the  speciali- 
zation of  the  probate  judge  of  Cook  County  in  probate  matters  many 
lawyers  regard  a trial  de  novo  in  the  circuit  court  as  superfluous. 
In  the  down  state  counties,  particularly  in  the  smaller  ones  where  the 
county  judge  receives  such  a small  compensation  that  the  more  ex- 
perienced members  of  the  bar  are  not  attracted  to  the  office,  a dif- 
ferent situation  is  found.  In  these  counties  there  is  much  to  be  said 
for  the  trial  de  novo  in  the  circuit  court. 

The  trial  de  novo  in  probate  matters  may,  of  course,  be  abolished 
absolutely  by  statute.  If  its  total  abolition  is  desired  no  constitutional 
change  is  necessary.  If,  however,  it  is  desired  to  abolish  the  trial  de 
novo  in  Cook  County  and  permit  it  in  other  counties,  the  uniformity 
provision  in  the  present  constitution  will  cause  trouble.  Should  a un- 
ified trial  court  be  established,  the  difficulty  of  trials  de  novo  will  not 
arise. 

City  and  county  courts.  If  the  present  system  of  city  courts 
is  retained,  it  will  be  suggested  that  the  jurisdiction  of  such  courts  be 
made  co-extensive  with  the  county.  If  the  county  court  is  to  be  re- 
tained, it  will  be  suggested  that  it  be  given  equitable  jurisdiction. 

Qualifications  of  judicial  officers.  It  has  been  suggested  that 
a new  constitution  require  that  masters  in  chancery,  county  judges, 
probate  judges,  and  state’s  attorneys  be  members  of  the  bar.  In  this 
connection  it  will  be  noted  that  the  constitution  contains  no  require- 
ment as  to  the  professional  qualifications  of  any  judicial  officers.  Cir- 
cuit and  supreme  court  judges  need  not  have  been  admitted  to  the  bar, 
' and  the  supreme  court  has  held76  that  the  general  assembly  may  not 
impose  qualifications  for  office  in  addition  to  those  now  prescribed  in 
the  constitution. 

Masters — court  commissioners.  It  will  be  suggested  that  pro- 
vision be  made  for  some  such  officer  as  a master  or  court  commis- 
sioner to  perform  on  the  common  law  side  duties  somewhat  ana- 
logous to  those  of  the  master  in  chancery  in  the  equity  courts.  Atten- 
tion is  called,  particularly  in  Chicago,  to  the  vast  amount  of  time 
spent  by  judges  in  hearing  motions,  large  numbers  of  which  are  un- 
contested. It  has  been  urged  that  if  some  such  officer  be  provided 
to  relieve  the  judges  of  this  mass  of  routine  work,  a great  saving  in 
judicial  time  could  be  effected. 

Some  such  system  is  provided  in  a few  states.  In  Arizona  the 
judges  of  the  trial  court  are  empowered  to  appoint  “such  court  com- 
missioners in  their  respective  counties  as  may  be  deemed  necessary, 
who  shall  have  such  powers  and  perform  such  duties  and  receive  such 
compensation  as  may  be  provided  by  law”.77  Statutes  have  specified 
the  powers  of  these  commissioners.  Information  from  Arizona,  how- 
ever, tends  to  indicate  that  matters  are  presented  to  them  so  infre- 


70  People  v McCormick,  261  111.  413  (1914). 
77  Constitution  of  Arizona,  Art.  VI,  Sec.  19. 


811 


quently  that  their  functions  amount  to  little.  It  appears  that  they 
do  not  act  at  all  when  the  judge  is  within  the  jurisdiction.  Similarly 
in  California  it  is  provided  that  the  legislature  “may  also  provide  for 
the  appointment,  by  the  several  superior  courts,  of  one  or  more  com- 
missioners in  their  respective  counties,  or  cities  and  counties,  with 
authority  to  perform  chamber  business  of  the  judges  of  the  superior 
courts,  to  take  depositions,  and  perform  such  other  business  con- 
nected with  the  administration  of  justice  as  may  be  prescribed  by 
law.78  The  system  is  not  used  to  any  extent  in  California.  It  is  the 
policy  to  provide  additional  judges  from  time  to  time  as  the  work  re- 
quires, instead  of  using  court  commissioners. 

In  England  masters  are  employed  to  hear  motions  and  interlocu- 
tory applications.  They  save  the  judges  an  enormous  amount  of  time.79 

In  Illinois  the  establishment  of  a system  of  court  commissioners  is 
not  dependent  upon  constitutional  provisions.  Much  could  be  accom- 
plished in  this  direction  by  statute. 

Public  defender.  It  will  be  suggested  that  the  new  constitu- 
tion provide  for  an  official  to  be  known  as  the  public  defender,  whose 
duties  shall  consist  of  defending  criminals  who  have  insufficient  funds 
to  procure  competent  counsel  to  defend  them.80 

State's  attorneys.  The  suggestion  has  been  made  that  the  ma- 
chinery for  the  administration  of  justice  in  the  state  be  consolidated 
in  a single  department,  or  under  a single  officer.  To  effect  such  a 
concentration  it  has  been  suggested  that  the  state’s  attorney  either  be 
placed  directly  under  the  governor,  who  is  responsible  for  the  ad- 
ministration of  justice,  or  that  he  be  subjected  to  a more  effective 
control  of  the  attorney  general  than  under  the  present  system,  and 
that  the  attorney  general  be  made  appointive  by  the  governor. 

It  should  be  noted  that  under  the  present  constitution  state’s  at- 
torneys may  be  removed  from  office  only  “on  prosecution  and  final 
conviction  for  misdemeanor  in  office.” 

Uniformity  of  jurisdiction.  The  provision  in  the  constitution 
of  1870  that  all  laws  relating  to  courts  shall  be  general  and  of  uniform 
operation  and  that  the  organization,  jurisdiction,  powers,  proceedings 
and  practice  of  all  courts  of  the  same  class  or  grade  shall  be  uniform, 
will  cause  difficulty  if  it  is  desired  to  create  a unified  court  for  Cook 
County  and  retain  the  present  system  of  judicial  organization  down- 
state.  It  will  also  cause  trouble  in  the  future  if  consolidated  juris- 
diction is  desired  in  other  cities  which  may  present  problems  similar 
to  those  now  existing  in  Chicago  and  Cook  County.  This  clause  will 
also  lead  to  difficulty  should  it  be  desired  to  abolish  trials  de  novo  and 
appeals  from  the  probate  court  in  Cook  County  and  retain  them  in 
other  counties.  A similar  situation  will  arise  should  it  be  desired  to 
abolish  justices  of  the  peace  in  urban  communities  and  retain  them  in 
Ihe  rural  districts. 


78  California  constitution.  Art.  VI,  Sec.  14. 

79  See  Learning:  A Philadelphia  Lawyer  in  the  London  Courts,  Chap.  X. 

80  See  Justice  and  The  Poor,  by  Reginald  Heber  Smith.  Carnegie  Foundation 
for  the  Advancement  of  Teaching,  Bull.  No.  13,  Chap.  15  (1919). 


S12 


Coroners.  The  substitution  of  medical  examiners  for  coroners 
will  be  suggested.  At  the  present  time  the  chief  function  of  the  coro- 
ner is  to  hold  inquests  on  the  bodies  of  persons  who  are  supposed  to 
have  come  to  their  death  by  violence  or  other  undue  means.  The  in- 
quest is  held  in  view  of  the  body  by  a jury  of  six  summoned  by  the 
coroner.  The  coroner’s  inquest  has  been  held  not  to  be  a judicial  pro- 
ceeding.81 The  Supreme  Court  of  Illinois  at  first  held  it  admissible  in 
a civil  case  as  evidence  to  show  the  cause  of  a person’s  death  in  this 
state  but  not  as  conclusive  evidence.  This  view  was  later  departed 
from  by  the  holding  of  the  supreme  court  that  the  findings  of  a 
coroner’s  jury  cannot  be  admitted  as  evidence  in  workmen’s  compensa- 
tion cases  to  prove  the  cause  of  death.82  At  the  last  session  of  the  gen- 
eral assembly  it  was  enacted  that  the  coroner’s  verdict  should  not  be 
admissible  as  evidence  to  prove  or  establish  any  of  the  facts  in  con- 
troversy in  any  civil  suit  or  proceeding  to  recover  damages  for  injuries 
caused  by  the  negligence  of  any  person,  firm  or  corporation  resulting 
in  the  death  of  any  person  or  for  the  collection  of  a policy  of  insur- 
ance83 

Massachusetts  and  Maine  both  provide  for  the  appointment  by 
the . governor  of  medical  examiners  in  each  county.  In  Maine  they 
must  be  “able  and  discreet  men,  learned  in  the  science  of  medicine 
and  anatomy,  and  bona  fide  residents"  of  the  county  for  which  they  are 
appointed”.84  Massachusetts  has  similar  requirements.85  The  duties 
of  the  medical  examiners  are  similar  to  those  of  coroners  in  Illinois. 
Reports  from  Massachussets  speak  very  highly  of  the  results  obtained 
under  the  system.  In  Louisiana  coroners  are  required  by  the  consti- 
tution to  have  a medical  or  surgical  education.86  In  New  York  City 
coroners  are  appointed  by  the  governor.87 

In  this  connection  it  has  been  suggested  that  reference  to  coro- 
ners be  omitted  from  the  constitution  in  order  that  the  general  as- 
sembly may  subsequently  deal  with  the  duties  now  performed  by  them 
in  such  manner  as  it  may  see  fit. 

Justices  of  the  peace.  Several  suggestions  have  been  made 
with  respect  to  the  justice  of  the  peace  system.  Many  lawyers  in 
rural  communities  believe  it  works  as  well  as  any  system  which  could 
be  devised  to  take  its  place.  Others  are  strong  advocates  of  its  aboli- 
tion. Many  feel  that  the  jurisdiction  of  the  justice  of  the  peace  is  too 
high  and  should  be  reduced.  This  is,  however,  a statutory  and  not  a 
constitutional  matter.  A few  lawyers  have  suggested  putting  justices 
of  the  peace  on  a salary  basis  and  electing  only  enough  to  handle  the 
work  of  the  community.  Such  a plan  would  probably  work  satisfac- 
torily in  urban  communities,  but  would  present  greater  difficulties  in 
rural  districts.  It  has  also  been  suggested  that  the  county  courts  take 
over  the  jurisdiction  of  the  justices  of  the  peace  and  police  magis- 


81  United  States  Life  Insurance  Co.  v Vocke,  129  111.  557  (1889). 

82  Peoria  Cordage  Co.  v Industrial  Board,  284  111.  90  (1918);  Spiegel  v In- 
dustrial Commission,  288  111.  422  (1919). 

83  Laws  of  Illinois.  1919,  p.  294. 

84  Revised  Statutes  of  Maine  (1916).  Oh.  141.  Sec.  1,  p.  1585. 

85  Revised  Laws  of  Massachusetts  (1902),  Ch.  24,  Sec.  1,  p.  357. 

86  Constitution  of  Louisiana,  Art.  121. 

87 N.  Y.  Laws,  1915,  Ch.  284. 


813 


trates.  Such  a system  would  present  difficulties,  since  it  is  impractic- 
able to  take  all  justice  of  the  peace  business  from  all  parts  of  the 
county  to  the  county  seat.  Another  suggestion  is  that  the  circuit  court 
appoint  two  or  more  masters  or  commissioners  to  be  stationed  in  dif- 
ferent parts  of  the  county  or  to  travel  through  it  when  necessary  and 
dispose  of  this  kind  of  business,  such  commissioners  to  be  under  the 
general  supervision  of  the  circuit  court.  Proposals  for  a unified  court 
for  Cook  County  contemplate  the  absorption  by  that  court  of  the 
jurisdiction  of  the  justices  of  the  peace  and  police  magistrates  in  the 
county  outside  of  the  city  of  Chicago. 

If  the  present  justice  of  the  peace  system  is  retained  the  sug- 
gestion has  been  made  that  in  very  petty  matters  the  decision  of  the 
justice  should  be  final  without  appeal  to  the  county,  circuit,  or  city 
court. 

In  Washington  justices  of  the  peace  in  incorporated  cities  or 
towns  having  more  than  5,000  inhabitants  have  been  placed  on  a salary 
basis.  Reports  from  that  state  as  to  the  operation  of  this  system 
indicate  that  it  works  satisfactorily.  A prominent  Seattle  lawyer 
writes:  “It  leaves  the  justice  to  be  in  fact  a judge,  without  having  to 
think  about  the  fees  he  may  realize  out  of  the  case,  and  I think  it  is 
generally  preferred  in  this  state  to  the  fee  system  of  charges.” 

In  California  justices  of  the  peace  have  been  placed  on  a salary 
basis  in  the  larger  communities.  Reports  from  that  state  indicate 
that  it  works  satisfactorily  and  is  a great  improvement  over  the  fee 
system. 

Suggestions  covered  in  other  chapters  of  this  bulletin.  Many 
proposals  of  changes  in  the  judicial  organization  have  been  discussed 
in  other  parts  of  this  bulletin.  In  the  section  on  the  jury  and  grand 
jury,  the  various  proposals  of  changes  in  the  jury  and  grand  jury 
system  have  been  discussed.  In  the  chapter  on  the  election  and 
tenure  of  judges  proposals  with  respect  to  methods  of  electing  judges, 
methods  of  removal,  methods  of  choosing  chief  justices  of  the  various 
courts,  and  proposals  for  the  temporary  appointment  of  judges  to  fill 
vacancies,  or  to  assist  courts  whose  calendars  are  congested,  have 
been  discussed.  The  chapter  upon  the  election  and  tenure  of  judges 
has  also  considered  proposals  for  reapportionment  of  the  supreme 
court  election  districts  of  the  state  of  Illinois  and  the  question  of 
changing  the  boundaries  of  these  districts.  In  the  chapter  on  power  to 
declare  laws  unconstitutional  the  proposals  for  advisory  opinions  and 
for  the  requirement  of  an  extraordinary  majority  to  declare  laws  un- 
constitutional have  been  treated.  Claims  against  the  state  are  not 
now  handled  by  the  courts  in  Illinois,  but  the  problem  involved  in 
such  claims  is  so  closely  related  to  the  judicial  function  that  it  has 
been  discussed  in  a separate  chapter  of  this  bulletin. 

In  Bulletin  No.  14  will  be  found  a discussion  of  the  power  of 
courts  in  injunction  cases. 


814 


VI.  ELECTION  AND  TENURE  OF  JUDGES. 


In  Illinois  all  judges  are  elected  by  popular  vote.  For  the  pur- 
pose of  electing  supreme  court  judges  the  state  is  divided  into  seven 
districts,  and  one  judge  is  elected  by  the  qualified  voters  of  each  dis- 
trict for  a term  of  nine  years.  The  state  outside  of  Cook  County  is 
divided  into  seventeen  circuits.  Three  circuit  judges  are  elected  by  the 
qualified  voters  of  each  circuit  for  a term  of  six  years.  Twenty  judges 
of  the  circuit  and  twenty  of  the  superior  court  of  Cook  County  are 
elected  by  the  voters  of  that  county  for  a term  of  six  years.  Judges  of 
the  municipal  court  of  Chicago  are  elected  by  the  voters  of  that  city  for 
a term  of  six  years.  Judges  of  the  probate,  county  and  city  courts 
hold  their  office  for  a term  of  four  years  and  are  elected  by  the  voters 
of  their  county  or  city.  The  supreme  court  assigns  circuit  court  judges 
to  duty  in  the  appellate  court  for  a term  of  three  years.  Three  judges 
are  assigned  to  each  appellate  court.  In  districts  in  which  branch  ap- 
pellate courts  are  established  three  additional  judges  are  assigned  for 
each  branch.  At  the  present  time  there  are  two  branches  in  the  first 
appellate  district.  All  judges  are  required  to  reside  in  the  division, 
circuit,  county  or  district  from  which  they  are  elected.  The  election  of 
the  supreme  and  circuit  judges  is  held  on  the  first  Monday  in  June. 
The  election  of  county  and  probate  judges  takes  place  on  the  Tuesday 
next  after  the  first  Monday  in  November.  Vacancies  are  filled  by  elec- 
tion if  the  unexpired  term  is  over  one  year,  but  if  they  do  not  exceed 
a year  the  governor  appoints. 

Under  the  first  constitution  judges  in  Illinois  were  elected  by  a 
joint  ballot  of  both  houses  of  the  general  assembly  and  held  their  of- 
fice during  good  behavior.  This  method  proved  to  be  unsatisfactory, 
and  the  popular  election  of  judges  was  adopted  by  the  constitution  of 
1848.  Popular  election  of  judges  has  caused  little  dissatisfaction  out- 
side of  Chicago  and  Cook  County.  In  Chicago  and  Cook  County  the 
large  number  of  judges  to  be  elected  at  each  election  makes  it  difficult 
for  the  voters  to  make  an  intelligent  selection  of  judges. 

There  is  some* demand  for  the  election  of  appellate  court  judges  as 
independent  judges  and  a longer  term  for  some  judges  has  been  dis- 
cussed. The  supreme  court  election  districts  no  longer  give  equality  of 
representation  to  the  different  parts  of  the  state.  The  present  methods 
of  filling  vacancies  have  caused  some  difficulty. 

In  communities  where  few  judges  are  elected  the  personal  integrity 
of  a judicial  candidate  can  be  easily  ascertained  by  the  electors.  More 
difficulty  is  experienced  in  ascertaining  his  technical  qualifications,  as 
these  are  of  such  a nature  that  they  are  likely  to  be  known  to  few  out- 
side of  the  members  of  the  bar.  In  metropolitan  districts,  where  many 


815 


judges  are  elected  by  a large  electorate,  the  selection  of  competent 
judges  by  popular  election  is  more  difficult.  The  result  in  metropolitan 
districts  is  that  many  voters  either  do  not  exercise  their  right  to  vote, 
vote  blindly,  or  rely  upon  the  recommendation  of  others. 

The  bar  associations  have  endeavored  to  furnish  recommendations 
by  holding  har  association  primaries.  The  results  %of  these  primaries 
are  published.  However,  the  influence  of  party  leaders  is  great,  and 
without  their  endorsement  a candidate  is  seriously  handicapped. 


The  Illinois  problem.  In  Illinois  outside  of  Cook  County  the 
voters  of  each  county  elect  one  county  judge.  The  voters  of  each  of 
the  seventeen  judicial  circuits  elect  three  circuit  judges,  and  the  voters 
of  each  of  the  seven  supreme  court  election  districts  elect  one  supreme 
judge.  In  the  nine  counties  having  a population  of  over  70,000,  the 
voters  elect  one  probate  judge.  In  twenty-six  cities  the  voters  elect 
one  city  judge ; and  in  one  city,  East  St.  Louis,  two  city  judges. 

In  Cook  County  the  voters  elect  twenty  superior  court  judges, 
twenty  circuit  court  judges,  one  probate  judge,  one  county  judge,  and 
vote  for  one  supreme  court  judge.  In  addition  to  these,  the  voters  of 
Chicago  elect  one  chief  justice  of  the  municipal  court  and  thirty  asso- 
ciate judges.  The  supreme  court  judges  and  the  circuit  and  the  su- 
perior court  judges  are  nominated  by  party  conventions.1 

The  following  table  shows  the  dates  of  judicial  elections,  and  the 
judges  to  be  elected  in  Illinois. 


(i)  Downstate. 
June,  1921. 

November,  1922. 


JUDICIAL  ELECTIONS 

1 Supreme  Court  Judge  in  4th  District. 

3 Circuit  Judges  in  each  Circuit. 

1 County  Judge  in  each  county. 

1 Probate  Judge  in  Kane,  La  Salle,  Madison,  Pe- 
oria, Rock  Island,  Sangamon,  St.  Clair,  Ver- 
milion and  Will  counties. 


June,  1924.  1 Supreme  Court  Judge  in  each  of  the  1st,  2nd, 

3rd,  6th  and  7th  Districts. 

November,  1926.  County  and  Probate  judges. 

June,  1927.  1 Supreme  Court  Judge  in  5th  District. 

3 Circuit  Judges  in  each  circuit. 

In  26  cities  1 city  judge  is  elected  every  four  years. 

In  East  St.  Louis  two  city  judges  are  elected  every  four  years. 

(2)  Cook  County  and  Chicago. 

April,  1919.  1 Superior  Court  judge. 

November,  1920.  10.  Municipal  Court  judges. 

June,  1921.  20  Circuit  judges  and  1 Superior  Court  judge. 


1 People  ex  rel.  Hoyne  v Sweitzer.  266  111.  459  f 19 1 5 ) Laws  of  1919,  pp. 

482-484. 


816 


June,  1922.  6 Superior  Court  judges. 

November,  1922.  10  Municipal  judges,  1 County  and  1 Probate 
court  judge. 

November,  1923.  12  Superior  court  judges. 

June,  1924.  1 Supreme  court  judge. 

November,  1924.  1 Chief  Justice,  Municipal  Court,  and 

10  Judges,  Municipal  Court. 

The  three  circuit  judges  are  elected  in  each  circuit  at  the  same 
time.  This  election  is  held  on  the  first  Monday  of  June  each  six  years, 
after  1873. 2 The  election  of  supreme  court  judges  is  also  held  on  the 
first  Monday  of  June,  but  is  held  each  nine  years  after  1879  in  the  first, 
second,  third,  sixth  and  seventh  districts;  each  nine  years  after  1876 
in  the  fourth  district,  and  each  nine  years  after  1873  in  the  fifth  district. 
In  any  given  circuit  elections  for  circuit  judges  and  for  supreme  court 
judges  will  be  held  at  the  same  time  every  eighteen  years.  There  is 
no  special  date  fixed  by  statute  for  the  election  of  city  judges,  but  they 
may  not  be  elected  at  the  time  when  city  officers  are  elected.3  County 
and  probate  judges  are  elected  at  the  general  election,  on  the  Tuesday 
after  the  first  Monday  in  November. 

The  discussion  here  deals  primarily  with  judges  of  courts  of 
record,  but  it  should  be  borne  in  mind  that  outside  of  Chicago  justices 
of  the  peace  and  police  magistrates  are  elected  for  four-year  terms. 
Justices  of  the  peace  were  abolished  for  the  City  of  Chicago  in  1905, 
but  under  the  constitution  of  1870  they  were  appointive  so  long  as  they 
existed.  Each  town  in  counties  under  township  organization  and  each 
election  precinct  in  counties  not  under  township  organization  is  author- 
ized to  elect  two  justices  of  the  peace,  and  an  additional  justice  of  the 
peace  (up  to  five)  for  every  one  thousand  inhabitants  in  excess  of  two 
thousand.  Justices  are  elected  at  the  township  election  in  counties 
under  township  organization.  Police  magistrates  (with  the  same  juris- 
diction as  justices  of  the  peace)  may  be  elected  in  all  cities,  villages  and 
incorporated  towns,  and  are  chosen  at  city  or  village  elections. 


Situation  outside  of  Cook  County.  At  no  election  outside  of 
Cook  County  are  over  four  judges  elected.  All  voters  are  called  upon 
to  vote  for  at  least  five  judges,  but  no  voter  is  called  upon  to  vote  for 
more  than  eight  judges.  The  election  of  supreme  and  circuit  judges 
takes  place  at  a time  when  no  other  elections  are  held.  The  election  of 
county  and  probate  judges  takes  place  when  other  officers  are  being 
elected,  and  they  are  chosen  from  an  area  which  constitutes  the  princi- 
pal unit  for  political  party  organization.  They  are,  however,  voted 
upon  by  a small  electorate  and  the  candidates  are  likely  to  be  known 
to  many  of  the  voters. 


2 Hurd’s  Revised  Statutes,  Chap.  46,  Sec.  12. 

3 Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  244. 


Bit 


The  Cook  County  situation.  In  Cook  County  a more  difficult 
situation  has  developed.  At  the  present  time  the  electors  in  Chicago 
vote  for  candidates  for  seventy-four  judgeships.  Cook  County  electors 
outside  of  Chicago  vote  for  candidates  for  forty-three  judgeships,  and 
in  Chicago  Heights  an  additional  judgeship  (the  city  judgeship)  is 
added.  At  one  election  twenty-one  judges  are  elected.  The  circuit 
court  judges  and  seven  of  the  superior  court  judges  are  elected  at  sep- 
arate judicial  elections.  Thirteen  superior  court  judges  and  the  mu- 
nicipal court  judges  are  elected  at  the  November  elections. 

The  problem  of  choosing  judges  in  Cook  County  is,  therefore,  dif- 
ferent from  that  for  the  rest  of  the  state,  and  the  election  of  judges 
has  not  worked  as  well  as  in  the  other  counties. 

Cook  County  is  recognized  as  a separate  judicial  unit  by  the  con- 
stitution of  1870.  If  a different  method  of  selecting  judges  is  thought 
to  be  desirable  for  this  county  or  for  Chicago,  it  could  be  provided 
without  discarding  the  present  method  in  the  rest  of  the  state. 


Methods  of  selecting  judges.  There  are  three  methods  of  se- 
lecting judges  in  the  United  States. 

In  thirty-eight  states  judges  of  the  highest  court  are  elected  by 
the  people.  In  all  of  these  states  except  one  the  trial  judges  are  chosen 
in  the  same  manner.  In  Florida  the  trial  judges  are  appointed  by  the 
governor  although  the  judges  of  the  supreme  court  are  elected. 

In  four  states  (Rhode  Island,  Virginia,  South  Carolina  and  Ver- 
mont) the  judges  are  elected  by  the  legislature,  and  in  one  (Connect- 
icut), they  are  appointed  by  the  legislature  upon  nomination  of  the 
governor. 

In  five  states  the  highest  judges  are  appointed  by  the  governor 
subject  to  confirmation,  by  the  governor’s  council  in  Maine,  Massa- 
chusetts and  New  Hampshire,  and  by  the  senate  in  Delaware  and  New 
Jersey.  The  United  States  judges  are  appointed  by  the  President  and 
confirmed  by  the  Senate. 

The  objections  to  the  popular  election  of  judges  have  been  summed 
up  as  follows  :4 

“We  must  conclude,  then,  that  an  intelligent  choice  of  a judge  in 
the  first  instance,  by  a large  electorate  is  a practical  impossibility,  be- 
cause the  proper  qualifications  for  a judge  like  those  for  a doctor  or 
an  engineer  or  a teacher  are  so  technical  and  personal  that  very  few  of 
the  electorate  are  able  to  form  an  intelligent  opinion  of  the  merits  of  a 
candidate ; nor  can  judges  be  selected  largely  on  the  basis  of  their  at- 
titude toward  certain  political  policies  as  may  legislative  and  executive 
officers,  for  nearly  all  of  the  duties  judges  are  called  upon  to  perform 
can  only  be  properly  and  impartially  discharged  by  a rigorous  ignoring 
of  all  such  conditions. 

“What  popular  elections  give  us,  at  best,  is  an  appointment  by 
party  leaders,  or  a popular  choice  between  such  appointments ; and  at 

4 The  Selection,  Tenure  and  Retirement  of  Judges,  James  Parker  Hall.  Ad- 
dress before  Ohio  State  Bar  Association,  December,  1915,  American  Judicature 
Society  Bulletin  X,  p.  12. 


818 


worst  they  give  us  a clever  personal  advertiser  or  a sheer  accident — the 
latter  being  somewhat  likely  to  happen  in  districts  of  relatively  low 
intelligence  with  a direct  primary  and  a nonpartisan  ballot.” 

Election  by  the  general  assembly  was  adopted  in  Illinois  by  the  con- 
stitution of  1818.  It  was  discarded  in  1848  in  favor  of  the  present  sys- 
tem, and  there  seems  to  be  no  desire  to  go  back  to  the  old  method.  It  is 
said  that  in  Vermont  and  Rhode  Island  the  judges  are  almost  wholly 
chosen  from  among  members  of  the  legislature  itself.5 

In  Illinois  the  abuse  of  power  by  the  general  assembly  was 
one  of  the  causes  for  discarding  the  legislative  method  of  selecting 
judges.  In  1841  the  controlling  political  party  in  the  general  assembly 
believed  that  the  supreme  court  would  make  a decision  inimical  to  its 
interests.  In  order  to  prevent  this,  the  general  assembly  increased  the 
number  of  judges  in  the  supreme  court  from  four  to  nine.  The  new 
judges  appointed  by  the  general  assembly  were  from  the  political  party 
that  was  in  control  of  the  general  assembly.6 

It  should  be  noted,  however,  that  the  power  of  appointment  was 
here  coupled  with  a power  in  the  general  assembly  to  increase  the 
number  of  members  of  the  supreme  court. 

The  advantages  of  appointment  by  the  executive  system  are 
summed  up  as  follows  by  James  Parker  Hall  in  an  address  before  the 
Ohio  State  Bar  Association  in  1915 : “The  system  has  certain  ad- 
vantages over  either  of  the  elective  ones  discussed.  A single  executive 
can  ascertain  the  fitness  of  candidates  for  judgeships  incomparably 
better  than  the  electorate,  if  he  has  the  will  to  do  so.  He  can  doubt- 
less do  this  better  than  can  a body  as  large  as  the  ordinary  legislature, 
granted  equally  good  purposes  on  the  part  of  both.  He  is  perhaps 
under  less  political  temptation  than  are  the  members  of  the  legislature 
to  trade  his  judicial  appointments  for  other  favors,  for  he  alone  can 
come  to  a decision  about  an  appointment,  while  it  requires  a majority 
or  a plurality  of  the  legislature  to  elect,  and  a deadlock  may  be  broken 
only  by  a compromise.  Most  important  of  all,  the  responsibility  for 
the  appointment  is  fixed  upon  a conspicuous  official,  and  in  a community 
where  political  public  influence  is  educated  and  sensitive  it  can  in- 
fluence such  an  official  as  it  never  can  the  relatively  irresponsible  mem- 
bers of  a somewhat  numerous  legislative  body 

“Of  all  methods  of  selecting  judges  of  which  we  have  actually  had 
considerable  experience  in  this  country,  that  of  appointment  by  the 
executive  has  unquestionably  produced  the  ablest  and  most  satis- 
factory courts.  Of  the  six  states  now  pursuing  this  method  of  choice, 
the  testimony  in  Massachusetts,  New  Jersey  and  Delaware  is  practically 
unanimous  that  the  judges  are  usually  admirably  fitted  to  their  tasks, 
and  enjoy  to  the  highest  degree  public  and  professional  confidence  in 
their  ability  and  impartiality.” 

This  statement  is,  of  course,  one  in  support  of  executive  appoint- 
ment and  does  not  call  attention  to  other  factors  which  may  explain 
the  favorable  judicial  situation  in  states  having  executive  appoint- 

5 James  Parker  ,Hall.  The  Selection.  Tenure  and  Retirement  of  Judges, 
Bulletin  X.  American  Judicature  Society,  p.  13. 

6 Anthony,  Constitutional  History  of  Illinois,  p.  132. 


819 


merits.  Dean  Hall’s  article  lays  too  much  emphasis  upon  the  purely 
technical  qualifications.  Executive  appointment  is  by  no  means  sure 
to  cause  the  disappearance  of  the  defects  in  our  judicial  system. 

Proposals  were  made  in  the  Massachusetts  constitutional  con- 
vention of  1917  both  for  the  election  of  judges  and  for  shorter  terms. 
These  proposals  were  both  rejected  but  will  be  found  discussed  in  the 
debates  of  that  convention. 

Many  suggestions  have  been  made  in  seeking  some  modification 
of  the  present  systems.  Some  of  these  plans  could  be  put  into  opera- 
tion without  a constitutional  provision. 

It  has  been  urged  that  the  best  judges  are  found  where  the  law- 
yers have  the  most  influence  in  selecting  judges.7  The  lawyers  doubt- 
less have  better  opportunities  to  learn  of  the  qualifications  of  the 
judicial  candidates,  and  may  be  more  capable  of  selecting  judges  than 
the  voter  who  seldom  comes  in  contact  with  the  courts.  Many  bar 
associations  recommend  candidates  and  such  recommendations  in  some- 
cases  (as  in  Wisconsin)  have  decisive  weight  in  the  elections.  It  has 
been  suggested  that  lawyers  or  bar  assocfations  be  given  the  privilege 
to  nominate  candidates. 

In  New  York  an  attempt  was  made  to  allow  the  governor  to  cer- 
tify names  of  judicial  candidates  to  be  placed  upon  the  ballot.  Under 
this  plan  the  names  were  to  appear  under  the  heading:  “Recom- 

mended by  the  Governor”. 

A more  radical  proposal  has  been  endorsed  by  the  American 
Judicature  Society,  with  especial  reference  to  the  situation  in  metro- 
politan communities,  where  a large  number  of  judges  is  necessary. 
Its  proposal  is  that  the  people  shall  elect  a chief  justice  for  a short 
term,  and  that  he  shall  appoint  the  other  judges  for  life,  unless  at 
elections  held  at  certain  intervals  the  people  vote  to  retire  these  judges. 
The  proposed  plan  requires  that  three  years  after  a judge  is  appointed 
his  name  shall  go  on  the  judicial  ballot  with  the  question : Shall  he 

be  retired  or  retained?  Again  six  years  later  the  same  question  is 
asked,  and  again  nine  years  later.  This  method  centers  the  responsi- 
bility for  the  selection  of  judges  in  one  person  who  is  responsible  for 
the  work  of  the  court.  However,  a chief  justice  who  had  a number 
of  judges  to  appoint  would  likely  be  subjected  to  much  political  pres- 
sure, although  the  electorate  would  retain  a degree  of  control  over  the 
appointees  by  being  permitted  to  vote  on  their  continuance  in  office. 

This  method  of  selecting  judges  is  similar  in  some  respects  to 
the  method  followed  in  New  Jersey  in  the  selection  of  vice-chancellors. 
In  New  Jersey  the  chancellor  is  appointed  by  the  governor.  The  chan- 
cellor is  given  power  to  appoint  vice-chancellors,  seven  in  number. 
The  results  in  New  Jersey  appear  to  have  been  good.8  The  Lord 
Chancellor  in  England,  who  is  the  head  of  the  judicial  system,  has 
large  powers  in  the  selection  of  justices. 

A plan  suggested  by  Judge  Hiram  T.  Gilbert  adopted  some  of  the 
elements  of  the  American  Judicature  Society  proposal.  Judge  Gilbert 

7 Preliminary  Report  on  the  Efficiency  in  the  Administration  of  Justice. 
The  National  Economic  League. 

8 James  Parker  Hall.  The  Selection,  Tenure  and  Retirement  of  Judges.  Bul- 
letin X.  American  Judicature  Society,  p.  30. 


820 


proposes  that  Cook  County  judges  shall  be  appointed  by  the  governor 
to  serve  until  death,  resignation,  retirement  or  removal.  At  six-year 
intervals  he  proposes  that  an  election  be  held  to  express  approval  or 
disapproval  of  the  judges  then  in  office,  and  if  a judge  is  disapproved 
his  office  is  to  become  vacant.9 

In  California  the  proposal  has  been  made  for  a non-partisan 
court  commission  whose  members  should  serve  for  twelve  years,  this 
commission  to  have  authority  to  appoint  all  judges,  with  the  advice 
and  consent  of  the  senate,  and  power  also  to  hear  and  determine  all 
charges  against  judicial  officers. 

The  method  of  choosing  a chief  justice  is  important  as  bearing 
upon  the  permanence  of  judicial  policy.  The  chief  justice  of  the 
United  States  Supreme  Court  is  appointed  as  such.  The  constitution  of 
Illinois  provides  that  “the  judges  shall  choose  one  of  their  number 
chief  justice”,  and  the  court  has  adopted  the  practice  of  each  judge 
in  turn  serving  for  one  year.  For  the  circuit  and  superior  courts  of 
Cook  County,  the  constitution  prescribes  that  “the  judge  having  the 
shortest  unexpired  term  shall  be  chief  justice  of  the  court  of  which  he 
is  a judge.  In  case  there  are  two  or  more  whose  terms  expire  at  the 
same  time,  it  may  be  determined  by  lot  which  shall  be  chief  justice”. 
Under  the  statute  creating  the  municipal  court  in  Chicago  the  chief 
justice  is  separately  elected  as  such,  and  is  given  large  authority  in  the 
control  of  the  court’s  business.  In  a number  of  states  chief  justices 
of  the  supreme  court  serve  in  rotation  for  short  periods  of  time  as 
in  Illinois.  In  a few  states  he  is  elected  to  the  position  of  chief 
justice.10  In  Delaware,  the  chief  justice  is  appointed  as  such,  and 
in  Maryland  he  is  appointed  from  the  members  of  the  court  by  the 
governor,  with  the  consent  of  the  senate.  Of  course,  a limited  tenure 
of  judges  prevents  the  choice  of  a chief  justice  to  serve  for  a long 
period.  Under  the  plan  proposed  by  Judge  Gilbert,  the  supreme  court 
is  to  appoint  a chief  justice  of  the  Cook  County  court. 


Methods  of  electing  judges  of  the  supreme  court.  There  are 
three  methods  of  voting  for  judges  of  the  highest  court  in  the  states 
where  these  judges  are  elected  by  a popular  vote. 

In  one  group  of  states,* 11  the  state  is  divided  into  districts,  and 
the  voters  of  each  district  elect  one  or  more  judges  to  the  highest  court. 
This  is  the  method  used  in  Illinois.  In  another  group  of  states,12 
the  state  is  divided  into  districts,  and  one  judge  is  elected  from  each 
district  by  the  voters  of  the  state  at  large.  In  a third  group  of  states 
the  judges  of  the  highest  court  are  elected  from  the  state  at  large  by 
the  voters  of  the  entire  state.13 


9 A proposed  judiciary  article  for  the  constitution  of  1920,  with  explana^ 
tory  notes.  By  Hiram  T.  Gilbert. 

10  Arkansas,  California,  Minnesota,  Montana,  Nebraska,  New  York. 

11  Illinois,  Mississippi,  Louisiana. 

12  Oklahoma,  Indiana,  Kentucky,  South  Dakota.  . ^ 

13  Alabama,  Arizona,  Arkansas,  Calif  ornia,  Colorado,  Florida,  Georgia,  Idaho, 
Iowa,  Kansas,  Michigan,  Minnesota,  Missouri,  Montana,  Nebraska.  Nevada, 
New  Mexico,  New  York,  North  Dakota,  Ohio,  Oregon,  Pennsylvania,  Tennessee, 
Texas,  Utah,  Washington,  West  Virginia,  Wyoming. 


821 


Election  by  districts  tends  to  obtain  the  representation  of  both 
leading  political  parties  in  the  highest  court.  Where  the  judges  are 
elected  by  the  voters  of  the  state  at  large  the  court  is  likely  to  be  com- 
posed of  members  of  the  same  political  party. 

The  purpose  of  electing  judges  of  the  highest  court  from  districts 
is  to  give  each  section  of  the  state  representation.  In  Illinois,  the 
present  election  districts  do  not  give  equality  of  representation.  The 
following  table  shows  the  population  of  the  Illinois  districts  according 
to  the  census  of  1910 : 


First  . . 
Second 
Third  . 
Fourth 
Fifth  . 
Sixth  . 
Seventh 


605,250 

..565,573 

631,746 

402,040 

400,263 

414,873 

2,618,846 


5,638,591 

The  general  assembly  has  power  to  change  the  boundaries  of  the 
districts  under  certain  restrictions,  but  have  made  no  changes  since 
1903.  In  1903  the  boundaries  of  the  fourth  district  were  changed, 
and  incidentally  the  boundaries  of  the  second,  fifth  and  sixth  dis- 
tricts.14 

The  constitution  provides  that : '‘The  boundaries  of  the  districts 

may  be  changed  at  the  session  of  the  general  assembly  next  preceding 
the  election  for  judges  therein,  and  at  no  other  time;  but  whenever 
such  alterations  shall  be  made  the  same  shall  be  upon  the  rule  of 
equality  of  population,  as  nearly  as  county  boundaries  will  allow,  and 
the  districts  shall  be  composed  of  contiguous  counties,  in  as  nearly 
compact  form  as  circumstances  will  permit”. 

The  elections  of  the  judges  of  the  supreme  court  do  not  take 
place  at  the  same  time,  and  in  changing  the  boundaries  of  one  district 
the  boundaries  of  others  must  also  be  changed.  It  was  held  in  People 
v Rose,  203  Illinois,  46  (1903)  that  the  general  assembly  could  change 
the  boundaries  of  one  district  at  the  session  next  preceding  the  elec- 
tion of  the  judge  in  that  district,  although  in  making  the  change,  the 
boundaries  of  other  districts  were  also  incidentally  changed. 

The  constitution  provides  that  “the  alterations  shall  be  made  upon 
the  rule  of  equality,  as  nearly  as  county  boundaries  will  allow”.  This 
provision  has  not  been  construed  by  the  courts.  If  it  means  that  a por- 
tion of  a county  can  not  be  formed  into  a district,  and  that  a district 
must  be  composed  of  one  or  more  whole  counties,  Cook  County  cannot 
without  constitutional  change  be  given  proportionate  representation 
upon  the  supreme  court  since  its  population  according  to  the  census  of 
1910  was  2,405,233  and  the  population  of  the  state  was  5,638,591. 
This  county  would  be  entitled  to  three  of  the  seven  judges  in  the 
supreme  court,  if  apportionment  were  to  be  based  purely  (n  popula- 
tion. 


11  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  la  and  lb. 


822 


Tenure.  The  tenure  of  judges  in  Illinois  varies  in  the  different 
courts.  Justices  of  the  peace  and  the  probate,  county  and  city  judges 
hold  their  offices  for  a term  of  four  years.  The  municipal  court  judges 
of  Chicago,  the  superior  court  judges  and  the  circuit  court  judges  for 
a term  of  six  years,  and  the  supreme  court  judges  for  a term  of  nine 
years.  There  has  been  some  agitation  for  a longer  term  for  the  su- 
preme court  judges  and  for  a uniform  tenure  for  the  trial  judges. 

In  other  states  where  the  judges  are  elected  by  the  people  the 
terms  of  the  highest  judges  range  from  four  to  twenty-one  years.  The 
longest  terms  are  in  Pennsylvania — twenty-one  years ; Maryland,  fif- 
teen years;  New  York,  fourteen  years;  California,  Louisiana  and  West 
Virginia,  twelve  years,  and  Missouri  and  Wisconsin  ten  years.  In 
seventeen  states  the  term  is  six  years.15  In  most  of  these  states  the 
trial  judges  are  chosen  for  shorter  terms. 

In  the  four  states  where  the  highest  judges  are  elected  by  the 
legislature,  the  term  is  for  life  in  Rhode  Island,  twelve  years  in  Vir- 
ginia, ten  years  in  South  Carolina  and  two  years  in  Vermont.  In  Illi- 
nois before  1848  the  judges  were  appointed  by  the  legislature  during 
good  behavior. 

In  Massachusetts  and  New  Hampshire  the  highest  judges  are 
appointed  for  life ; in  Delaware  for  twelve  years ; in  Connecticut  for 
eight  years,  in  Maine  for  seven  years,  and  in  New  Jersey  for  six  years. 
The  United  States  judges  are  appointed  for  life. 

The  advocates  of  long  terms  for  judges  contend  that  such  tenures 
tend  to  make  judges  more  impartial,  as  it  removes  them  from  the 
necessity  of  seeking  re-election;  that  it  tends  to  produce  a stronger 
bench  as  it  gives  the  judges  greater  opportunity  to  learn  the  judicial 
duties  and  to  gain  experience.  It  is  also  contended  that  the  frequent 
elections  are  an  unwarranted  expense;  and  that  a short  tenure  limits 
the  available  material  for  judicial  officers,  as  many  of  the  best  qualified 
lawyers  will  not  give  up  their  practice  for  an  uncertain  tenure. 

On  the  other  hand  the  opponents  of  long  terms  believe  that  a se- 
cure tenure  tends  towards  arbitrariness  and  ill-treatment  of  lawyers 
and  litigants  by  the  judges,  and  takes  away  the  motive  of  judges  to 
give  their  best  efforts  to  their  work. 


Removal  of  judges.  In  Illinois  judges  may  be  removed  by  im- 
peachment or  by  the  general  assembly.  Section  30  of  Article  VI  of 
the  constitution  provides : “The  general  assembly  may,  for  cause  en- 

tered on  the  journals,  upon  due  notice  and  opportunity  for  defense, 
remove  from  office  any  judge,  upon  concurrence  of  three-fourths  of 
all  members  elected.” 

Neither  method  offers  an  easy  means  of  removing  an  incompetent 
or  corrupt  judge.  With  short  tenures  and  popular  elections,  the  elec- 
tors are  afforded  a way  of  retiring  unsatisfactory  judges.  If  the 


w Alabama,  Arizona,  Florida,  Georgia,  Idaho,  Indiana,  Iowa,  Kansas,  Minne- 
sota, Montana,  Nebraska,  Nevada,  North  Dakota,  Oklahoma,  South  Dakota, 
Texas-,  Washington, 


823 


tenure  or  method  of  selecting  judges  is  changed,  other  methods  of  re- 
moving judges  may  be  desirable. 

In  some  of.  the  states,  judges  may  be  removed  only  by  impeach- 
ment, although  a number  of  states  have  constitutional  provisions  for 
removing  judges  for  cause,  by  the  legislature,  or  by  the  governor  upon 
address  by  the  legislature.  Usually  a concurrence  of  two-thirds  of  the 
members  elected  or  two-thirds  of  each  house  is  necessary. 

In  the  states  which  permit  removal  of  judges  by  other  proceedings 
than  impeachment  the  constitutions  of  Illinois,  Kansas,  Nevada,  New 
York,  North  Carolina,  Ohio,  Tennessee,  Utah,  Virginia,  West  Virginia, 
Washington  and  Missouri,  provide  for  their  removal  by  the  legislature, 
while  the  constitutions  of  Arkansas,  Connecticut,  Kentucky,  Massachu- 
setts, Texas,  Wisconsin,  Maryland,  Michigan  and  Pennsylvania  pro- 
vide that  judges  may  be  removed  by  the  governor  upon  the  address  of 
the  legislature.  In  Massachusetts  and  Virginia,  extraordinary  ma- 
jorities are  not  required  for  this  purpose.  Two-thirds  of  the  members 
elected  or  two-thirds  of  each  house  must  concur  in  all  of  the  other 
states  except  Washington  and  Illinois.  In  these  states  three-fourths  of 
the  members  elected  to  each  house  must  concur.  Until  the  constitution 
of  1870,  a two-thirds  majority  was  specified  in  Illinois. 

In  a few  states  the  causes  for  which  judges  may  be  removed  by 
legislative  action  are  specified.  The  constitutions  of  Nevada,  Mich- 
igan, Mississippi  and  Pennsylvania  provide  that  judges  may  be  re- 
moved for  cause,  not  sufficient  for  impeachment.  In  North  Carolina 
the  only  causes  for  which  the  legislature  may  remove  is  mental  or 
physical  disability.  In  West  Virginia  “age,  disease,  mental  or  bodily 
infirmity  or  intemperance”  making  them  incapable  of  discharging  their 
duties  are  specified.  In  Missouri,  inability  to  discharge  duties  with 
efficiency  by  reason  of  continued  sickness  or  physical  or  mental  dis- 
ability are  the  only  causes  specified.  In  Washington  “incompetency, 
corruption,  malfeasance  or  delinquency  in  office  or  other  sufficient 
cause”  is  required.  In  Louisiana  “high  crimes  and  misdemeanors,  non- 
feasance or  malfeasance  in  office,  incompetency,  corruption,  favoritism, 
extortion  or  oppression  in  office,  gross  misconduct  or  habitual  drunken- 
ness” are  the  causes.  In  Texas  “wilful  neglect  of  duty,  incompetency, 
habitual  drunkenness,  oppression  in  office,  or  other  reasonable  cause 
not  sufficient  for  impeachment.” 

In  Indiana  the  constitution  provides  that  “any  judge  who  shall 
have  been  convicted  of  corruption  or  other  high  crime  may,  on  in- 
formation in  the  name  of  the  state  be  removed  from  office  by  the  su- 
preme court  or  in  such  other  manner  as  may  be  prescribed  by  law”. 
The  Illinois  constitution  provides  that  all  officers  mentioned  in  the 
judicial  article,  other  than  judges  “shall  be  removed  from  office  on 
prosecution  and  final  conviction  for  misdemeanor  in  office”. 

In  Massachusetts  a constitutional  amendment  was  adopted  in 
1918,  which  provides  that  the  governor,  with  consent  of  the  council, 
may  after  due  notice  and  hearing  retire  judges  because  of  advanced 
age  or  mental  or  physical  disability. 

The  subject  of  removal  will  be  found  discussed  in  bulletins  dealing 
with  the  legislative  and  executive  departments.  The  discussion  here  is 


824 


limited  to  the  removal  of  judges  although  attention  should  be  directed 
to  the  fact  that  in  Illinois  state’s  attorneys  (who  are  dealt  with  In  the 
judicial  article  of  the  constitution)  are  removable  only  on  conviction  for 
misdemeanor  in  office,  although  their  official  position  gives  them  control 
of  the  machinery  for  the  prosecution  of  offenses.  The  constitution  ap- 
plies the  same  method  of  removal  to  other  officers  than  judges  who  are 
provided  for  in  the  judicial  article,  and  justices  of  the  peace  are  prob- 
ably so  removable;16  they  are  not  styled  judges  by  the  constitution. 
Justices  of  the  peace  for  Chicago  before  their  abolition  in  1905  under 
authority  of  the  constitutional  amendment  of  1904,  were  by  express 
constitutional  provision  subject  to  removal  “by  summary  proceeding  in 
the  circuit  or  superior  court,  for  extortion  or  other  malfeasance”. 

Certainly  the  methods  of  removing  judges  are  too  cumbersome  if 
justices  of  the  peace  are  included  under  this  designation,  and  even  as 
to  judges  of  courts  of  record  impeachment  or  removal  by  three-fourths 
of  all  members  elected  to  each  house  are  unlikely  to  be  employed  in 
other  than  exceptional  cases.  Only  one  impeachment  of  a judge  has 
been  attempted  in  Illinois  (that  of  Judge  Theophilus  W.  Smith  of  the 
supreme  court  in  1833),  and  in  that  case  an  acquittal  resulted,  although 
a majority  of  the  senators  were  for  conviction.  In  no  case  has  a judge 
been  removed  by  action  of  the  two  houses.  In  Massachusetts  there 
have  been  removals  both  by  impeachment  and  by  address  of  the  two 
houses.17 


Retirement.  Connecticut,  New  Hampshire,  New  York,  Mary- 
land and  Louisiana  have  constitutional  provisions  relating  to  the  retire- 
ment of  judges  on  account  of  age.  In  Connecticut  and  New  Hampshire 
a judge  is  ineligible  to  serve  after  he  reaches  the  age  of  seventy.  In 
New  York  a judge  must  retire  on  the  last  day  of  December  after  reach- 
ing the  age  of  seventy,  and  in  Maryland,  a judge  must  retire  at  seventy 
unless  the  legislature  sees  fit  to  continue  him  for  the  rest  of  his  term. 
In  1910  a constitutional  amendment  was  adopted  in  Louisiana  by  which 
judges  of  the  superior  court  who  have  served  for  fifteen  years  may  re- 
tire on  full  pay  upon  reaching  the  age  of  seventy-five.  'In  1918  an 
amendment  in  the  same  state  permits  district  judges  to  retire  on  full 
pay  upon  reaching  the  age  of  seventy-five,  provided  they  have  served 
twenty-five  years. 

The  Illinois  general  assembly  passed  an  act  in  1919  providing  that 
judges  of  the  supreme,  circuit,  superior,  probate,  county,  city  or  mu- 
nicipal courts  who  have  reached  the  age  of  sixty-five  and  have  served 
twenty-four  years  in  any  one  or  more  of  such  courts,  may  upon  re- 
tirement receive  an  annual  pension  equal  to  one-half  the  annual  com- 
pensation received  during  their  last  year  of  service. 


16  The  attorney  general  has  taken  this  view.  Report  and  Opinions  of  the 
Attorney  General,  1914,  p.  1201. 

17  For  a full  review  of  this  subject,  see  Massachusetts  Constitutional  Con- 
vention Bulletin  No.  36.  The  removal  of  judges  in  Massachusetts.  1917. 


825 


Vacancies.  Article  VI,  Section  32,  of  the  constitution  provides 
that  vacancies  of  officers  provided  for  in  the  judicial  article  of  the  con- 
stitution shall  be  filled  by  election ; but  where  the  unexpired  term  does 
not  exceed  one  year,  vacancies  of  judges  shall  be  filled  by  appointment 
of  the  governor. 

The  statutes  provide  that  when  a vacancy  shall  occur  in  the  office 
of  judge  of  the  supreme  court,  judge  of  the  circuit  court  or  judge  of 
the  county  court,  the  clerk  of  the  court  in  which  the  vacancy  exists  shall 
notify  the  governor  of  such  vacancy.  If  the  vacancy  occurs  within  one 
year  before  the  expiration  of  the  term  of  office  made  vacant,  the  gov- 
ernor fills  such  vacancy  by  appointment ; but  if  the  unexpired  term  ex- 
ceeds one  year,  the  governor  issues  a writ  of  election  as  in  other  cases 
of  vacancies  to  be  filled  by  election.18 

In  order  to  reduce  the  expense  of  special  elections,  it  is  usual  to 
call  these  elections  at  a time  when  other  elections  are  being  held.  This 
often  causes  a vacancy  to  exist  for  some  time  before  it  is  filled.  In  the 
city,  county,  probate,  circuit  or  superior  courts  the  inconvenience 
caused  by  a vacancy  may  be  obviated  by  calling  other  judges  to  hold 
court  in  the  city,  county  or  circuit  where  the  vacancy  exists,  as  the 
statutes  provide  for  the  exchange  of  county  judges  with  each  other  and 
with  probate  judges,19  and  the  exchange  of  city  and  circuit  judges,20 
and  for  the  assigning  of  circuit  judges  to  other  circuits.21  There  is  no 
provision,  however,  for  assigning  other  judges  to  assist  in  the  supreme 
court. 

In  other  states  where  judges  are  elected,  it  is  common  for  the  con- 
stitution to  prescribe  that  vacancies  in  the  highest  court  shall  be  filled 
by  appointment  by  the  governor  until  a successor  is  elected  and  quali- 
fied. Many  of  the  constitutions  also  specify  when  the  successor  shall 
be  elected.  In  Arizona,  California,  Colorado,  Georgia,  New  Mexico, 
North  Dakota,  Oklahoma,  Washington  and  South  Dakota,  the  consti- 
tutions provide  that  the  vacancy  shall  be  filled  by  the  governor  until  the 
successor  shall  be  elected  and  shall  qualify,  and  that  the  successor  shall 
be  elected  at  the  next  general  election.  In  other  states  in  which  the 
governor  appoints  until  the  successor  is  elected,  it  is  provided  that  the 
successor  shall  be  elected  at  the  first  general  election  occurring  more 
than  thirty  days  after  the:  vacancy  (Nebraska)  and  more  than  six 
months  (Alabama).  If  the  unexpired  term  does  not  exceed  one  year 
in  Illinois,  the  governor  may  appoint  for  such  term ; in  Arkansas  the 
governor  can  appoint  for  the  full  unexpired  term  if  it  is  not  more  than 
nine  months,  and  in  West  Virginia,  if  it  is  not  more  than  two  years. 


Additional  judges,  temporary  vacancies  and  ad  litem  appoint- 
ments. In  case  a judge  of  the  city,  county,  probate,  circuit,  or 
superior  court  is  incapacitated  or  for  any  reason  is  unable  to  sit,  an- 
other judge  may  be  called  in  to  sit  for  him,  as  the  statute  allows  inter- 

18  Hurd’s  Revised  Statutes,  Chap.  46,  sec.  131. 

19  Hurd’s  Revised  Statutes,  Chap.  37,  Secs.  215a,  239a,. 

20  Hurd’s  Revised  Statutes,  Chap.  37.  Sec.  245. 

21  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  82i. 


826 


change  of  county  judges  with  each  other  and  with  probate  judges,  the 
interchange  of  city  and  circuit  judges,  and  the  assignment  of  circuit 
judges  to  other  circuits.  These  provisions  permit  circuit  judges  to  be 
called  to  another  circuit  to  assist  when  a court  gets  behind  with  its 
work.  An  Act  of  1911  provided  that  the  supreme  court  might  appoint 
three  lawyers  in  any  appellate  district  to  assist  the  appellate  judges  in 
that  district,  but  the  operation  of  the  act  was  limited  to  a two-year 
period  and  no  action  was  taken  under  it.  No  provision  is  made  in  Illi- 
nois for  calling  judges  to  assist  in  the  supreme  court,  when  one  of  the 
supreme  court  judges  is  incapacitated  or  when  the  court  is  unable  to 
keep  up  with  its  work. 

The  increased  litigation  in  this  state,  has  caused  measures  to  be 
taken  at  various  times  to  relieve  the  supreme  court  of  some  of  its 
work.  The  constitution  of  1870  increased  the  number  of  supreme  court 
judges  from  three,  to  seven,  and  permitted  the  general  assembly  to  cre- 
ate appellate  courts.  In  1877  appellate  courts  were  created.  In  1909  a 
statute  was  passed  making  decisions  of  the  appellate  court  final  in  many 
cases  in  which,  before  this  time,  an  appeal  could  be  taken  to  the  su- 
preme court.  As  litigation  increases,  other  measures  to  relieve  the  su- 
preme court  of  some  of  its  work  will  probably  be  necessary.  Under 
these  conditions  it  may  be  desirable  to  provide  for  calling  other  judges 
to  assist  when  the  court  falls  behind  in  its  work. 

The  New  York  constitution  provides  that : “Whenever  and  as 

often  as  a majority  of  the  judges  of  the  Court  of  Appeals  shall  certify 
to  the  governor  that  said  court  is  unable,  by  reason  of  the  accumula- 
tion of  causes  pending  therein,  to  hear  and  dispose  of  the  same  with 
reasonable  speed,  the  governor  shall  designate  not  more  than  four 
justices  of  the  supreme  court  to  serve  as  associate  judges  of  Court  of 
Appeals”. 

Two  states,  Virginia  and  Ohio,  have  constitutional  provisions 
permitting  a special  court  to  be  called.  The  Virginia  provision  per- 
mits the  general  assembly  to  provide  from  time  to  time  for  a special 
court  to  try  cases  on  the  supreme  court  docket  which  the  court  cannot 
dispose  of  with  convenient  dispatch,  or  in  which  the  majority  of  the 
judges  of  the  supreme  court  are  so  situated  that  it  is  improper  for 
them  to  sit.  This  court  must  be  composed  of  not.  less  than  three  or 
more  than  five  judges  of  the  circuit  or  city  courts,  or  of  judges  of  the 
circuit  or  city  courts,  together  with  one  or  more  judges  of  the  supreme 
court.  A satisfactory  use  of  this  provision  was  made  under  the  Vir- 
ginia constitution  of  1869. 

In  Ohio  the  general  assembly  may  on  application  of  the  supreme 
court  provide  for  the  appointment  of  a commission  of  five  members 
to  dispose  of  such  part  of  the  supreme  court  docket  as  may  be  assigned 
to  it.  These  commissioners  are  appointed  by  the  governor  with  the 
advice  and  consent  of  the  senate.  The  term  of  the  commissioners  can- 
not exceed  two  years,  and  this  commission  cannot  be  created  oftener 
than  once  in  ten  years. 

Constitutional  provisions  are  made  in  several  states  for  the  ap- 
pointment ad  litem  of  judges  in  the  highest  court  in  case  of  inability 
of  one  or  more  of  the  judges  of  such  court  to  sit.  In  Georgia,  Ar- 


kansas,  Delaware,  Rhode  Island,  Tennessee,  Texas,  Kentucky,  and 
Minnesota,  this  appointment  is  made  by  the  governor.  In  Arizona, 
California,  Loiusiana,  Idaho,  Montana,  New  Mexico,  North  Dakota 
and  Vermont,  the  appointment  is  made  by  the  remainedr  of  the  court. 

The  appointment  is  required  to  be  from  judges  of  the  general 
trial  court  in  Georgia,  Arizona,  Idaho,  New  Mexico,  Montana,  North 
Dakota  and  Vermont;  from  the  judges  of  intermediate  court  of  ap- 
peals in  California,  and  from  the  judges  of  the  intermediate  court  of 
appeals  or  the  judges  of  the  general  trial  courts  in  Louisiana.  In 
Missouri  and  Mississippi,  the  parties  themselves  may  make  the  ap- 
pointment, but  in  case  the  parties  cannot  agree,  the  court  appoints  the 
judge  ad  litem  in  Missouri  and  the  governor  in  Mississippi. 

The  statements  made  above  relate  to  appointments  in  the  highest 
state  courts.  A number  of  states  also  have  constitutional  provisions 
regarding  the  appointment  of  judges  ad  litem  or  pro  tempore  for 
the  trial  of  particular  cases.  Some  provide  that  the  parties  may  agree 
upon  an  attorney  at  law  for  the  purpose.22  Several  provide  for  an- 
other method  of  choice  if  the  parties  cannot  agree,.23  and  in  Okla- 
homa in  case  the  judge  is  disqualified  and  the  parties  cannot  agree, 
a judge  pro  tempore  is  elected  by  the  members  of  the  bar  present,  at  the 
request  of  either  party.  Under  statutes  in  Indiana  and  Louisiana, 
the  regular  judge  may  in  certain  cases  designate  a lawyer  to  serve, 
and  in  South  Carolina  the  governor  may  commission  a lawyer  for  the 
purpose.24  Kentucky  also  has  a statute  permitting  parties  in  certain 
cases  to  agree  upon  an  attorney  to  hold  court.  Letters  received  from 
a number  of  states  indicate  that  little  use  is  made  of  provisions  for 
ad  litem  trial  judges. 

22  California,  Florida,  Idaho,  Montana,  New  Mexico,  Utah,  Washington. 

23  Alabama,  Mississippi,  Texas. 

24  The  Tennessee  constitution  also  authorizes  a similar  plan. 


VII.  INDICTMENT  AND  INFORMATION. 


Constitutional  and  statutory  provisions  in  Illinois.  The  con- 
stitution of  1818  (Art.  VIII.,  Sec.  10)  provided  that  “no  person  shall 
for  any  indictable  offense  be  proceeded  against  criminally,  by  informa- 
tion, except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
militia  when  in  actual  service,  in  time  of  war  or  public  danger,  by 
leave  of  the  courts  for  oppression  or  misdemeanor  in  office.” 

The  constitution  of  1848  (Art.  XIII.,  Sec.  10)  provided  “no 
person  shall  be  held  to  answer  for  a criminal  offense  unless  on  the 
presentment  or  indictment  of  . a grand  jury,  except  in  cases  of  im- 
peachment, or  in  cases  cognizable  by  justices  of  the  peace,  or  arising 
in  the  army  or  navy,  or  in  the  militia,  when  in  actual  service  in  time 
of  war  or  public  danger;  provided,  that  justices  of  the  peace  shall  try 
no  person,  except  as  a court  of  inquiry  for  any  offense  punishable 
with  imprisonment  or  death,  or  fine  above  $100. 

The  proposed  constitution  of  1862  contained  the  following  pro- 
vision: (Art.  II,  Sec.  11)  “That  all  offenses,  less  than  felony,  and  in 
which  the  punishment  is  by  fine  or  imprisonment  otherwise  than  in 
the  penitentiary  shall  be  tried  summarily  before  a court  authorized  by 
law  to  try  the  same,  upon  information  under  oath,  without  present- 
ment or  indictment  of  a grand  jury,  saving  to  the  defendant  in  all 
cases  the  right  of  appeal;  and  no  person  shall  be  held  to  answer  for 
any  higher  criminal  offense,  unless  on  presentment  or  indictment  of 
a grand  jury,  except  in  cases  of  impeachment,  or  in  cases  arising  in 
the  army  or  navy  or  in  the  militia,  when  in  actual  service,  in  time  of 
war  or  public  danger.” 

In  the  constitutional  convention  of  1869-70,  an  attempt  was  made 
to  abolish  the  grand  jury  by  providing  that  no  grand  jury  should  be 
appointed  or  empaneled  in  the  circuit  court,  but  that  offenses  should 
be  prosecuted  in  such  manner  as  might  be  provided  by  law.1  The 
attempt  failed  but  the  constitution  of  1870  provides  that  the  grand 
be  abolished  by  law  in  all  cases. 

Section  8,  of  the  constitution  of  1870  provides:  “No 
held  to  answer  for  a criminal  offense,  unless  on  in- 
jury, except  in  cases  in  which  the  punishment  is 
aent  otherwise  than  in  the  penitentiary,  in  cases 
cases  arising  in  the  army  arid  navy,  or  in 
in  time  of  war  or  public  danger ; Provided, 
»e  abolished  by  law  in  all  cases.” 

has  not  exercised  its  power  to  abolish 
ent  by  a grand  jury  is  therefore  necessary 


nstitutional  Convention,  1869-70,  p.  1439. 


835 


is  found  in  the  constitutions  of  Missouri,  Oklahoma,  Arizona,  Mon- 
tana, Idaho  and  Utah.  The  Utah  constitution  provides  “no  grand  jury 
shall  be  drawn  or  summoned  unless  in  the  opinion  of  the  judge  of  the 
district,  public  interest  demands  it.”  The  Arizona  constitution  pro- 
vides ; “Grand  juries  shall  be  drawn  and  summoned  only  by  order  of 
the  superior  court.”  The  constitutional  provision  relating  to  conven- 
ing of  grand  juries  in  Missouri,  Montana  and  Idaho  are  similar  to 
those  in  Utah  and  Arizona.  The  constitution  of  Oklahoma  provides 
that  the  grand  jury  shall  be  convened  by  the  judge  upon  his  motion,  or 
shall  be  ordered  by  the  judge  upon  the  filing  of  a petition  signed  by  100 
resident  tax  payers  of  the  county.  Michigan,  Kansas,  Washington, 
California  and  South  Dakota  have  constitutional  or  statutory  provisions 
which  permit  an  infrequent  use  of  the  grand  jury. 


Conclusions.  The  machinery  in  Illinois  for  committing  ac- 
cused persons  and  bringing  them  to  trial  is  cumbersome.  The  work  of 
committing  magistrates  is  not  closely  co-ordinated  with  the  processes 
of  indictment  and  information,  although  preservation  of  evidence  be- 
fore the  committing  magistrate  is  definitely  provided  for  before  the  mu- 
nicipal court.29  The  coroner’s  inquest,  although  once  an  important  ele- 
ment in  bringing  certain  types  of  offenders  to  justice,  has  practically 
ceased  to  perform  this  service. 

There  has  been  a definite  tendency  in  other  states  to  reduce  the 
use  of  the  grand  jury;  although  an  exception  to  this  statement  should 
be  made  with  respect  to  Oregon,  where  a constitutional  amendment  of 
1908  substituted  indictments  for  informations.  Attention  should  also 
be  called  to  the  fact  that  in  Illinois  informations  are  not  used  for  all 
offenses  punishable  by  fine  or  imprisonment  otherwise  than  in  the 
penitentiary,  although  this  is  constitutionally  permissible.  Where  the 
grand  jury  is  retained  for  regular  use,  there  has  been  a tendency  to 
reduce  its  size. 

Although  constitutional  changes  in  a number  of  other  states  have 
rendered  the  use  of  the  grand  jury  less  frequent,  there  has  been  little 
tendency  to  abolish  the  grand  jury  altogether.  While  information  has 
been  regarded  as  sufficient  for  ordinary  use,  it  had  been  thought  that  a 
grand  jury  may  be  worth  while  as  an  occasional  instrument  to  meet 
emergencies  or  to  proceed  where  the  prosecuting  officer  does  not  or  will 
not  act.  An  option,  such  as  that  which  exists  under  the  constitution  of 
Illinois,  to  abolish  the  grand  jury  “in  all  cases,”  probably  would  not 
have  been  taken  advantage  of  in  the  states  which  have  restricted  the 
use  of  grand  juries. 

Letters  were  written  to  a number  of  the  states  which  retain  the 
grand  jury,  but  use  informations  for  ordinary  purposes,  and  replies 
were  received  from  Arizona,  California,  Idaho,  Michigan,  Montana, 
Nevada,  South  Dakota,  Utah  and  Washington.  In  Michigan  there  is 
no  grand  jury  except  where  ordered  by  the  circuit  court,  and  apparently 
there  are  not  more  than  a half  dozen  grand  juries  called  in  the  state 


2#  Hurd’s  Revised  Statutes,  Chap.  37,  Sec.  313c. 


836 


during-  the  course  of  a year.  The  information  system  is  said  to  work 
satisfactorily,  and  grand  juries  when  called  are  apparently  not  regarded 
as  of  great  use. 

The  letters  from  all  the  other  states  just  enumerated,  agree  in  sub- 
stance with  the  statement  from  Michigan,  all  of  these  states  having 
about  the  same  plan  for  calling  a grand  jury.  The  grand  jury  is  re- 
garded as  important  and  is  occasionally  used  in  these  states  in  “graft” 
prosecutions,  in  cases  affecting  public  officers,  and  upon  other  excep- 
tional occasions.  "?IT  Seattle,  Washington,  it  has  become  customary  to 
have  a grand  jury  once  a year;  but  in  smaller  counties  of  the  states, 
here  under  discussion,  a grand  jury  is  infrequent.  A former  district 
judge  of  Idaho  reported  that  two  grand  juries  were  used  during  his 
twelve  years  of  service.  From  Arizona  a statement  was  received  that 
the  grand  jury  is  infrequently  used,  although  the  correspondent  ex- 
pressed a personal  preference  for  the  grand  jury. 

If  constitutional  changes  are  made  as  to  the  use  of  the  grand  jury, 
it  is  assumed  that  the  matter  will  not  be  dealt  with  in  detail  by  the  con- 
stitution. Committing  magistrates  and  coroners  are  now  covered  by 
statute,  and  it  is  not  necessary  that  they  be  regulated  by  the  constitution. 


837 


VIII.  TRIAL  BY  JURY. 


Constitutional  and  statutory  provisions.  The  right  of  a trial 
by  jury  is  guaranteed  by  the  constitution  of  1870,  both  in  criminal  and 
civil  cases. 

Section  5 of  Article  II  of  the  constitution  provides : “The  right 

of  trial  by  jury  as  heretofore  enjoyed  shall  remain  inviolate;  but  the 
trial  of  civil  cases  before  justices  of  the  peace  by  a jury  of  less  than 
twelve  men  may  be  authorized  by  law.” 

Section  9 of  the  same  article  provides : “In  all  criminal  prose- 

cutions the  accused  shall  have  the  right  to  appear  and  defend  in  person 
and  by  counsel ; to  demand  the  nature  and  cause  of  the  accusation,  and 
to  have  a copy  thereof ; to  meet  the  witnesses  face  to  face,  and  to  have 
process  to  compel  the  attendance  of  witnesses  in  his  behalf,  and  a 
speedy  public  trial  by  an  impartial  jury  of  the  county  or  district  in 
which  the  offense  is  alleged  to  .have  been  committed. 

The  constitutional  guaranty  extends  only  to  civil  cases  at  common 
law  and  to  criminal  cases.  It  does  not  extend  to  chancery1  or  probate2 
cases,  or  to  special  summary  jurisdictions  unknown  to  the  common 
law.3  It  does  not  require  a jury  for  original  proceedings  in  the  su- 
preme court  upon  application  for  mandamus  because  jury  trial  had 
never  been  provided  for  in  the  supreme  court.4  The  guaranty  “extends 
only  to  the  question  of  the  guilt  or  innocence  of  the  defendant  and 
does  not  extend  to  the  question  of  the  punishment  that  may  be  inflicted 
by  the  court  after  a verdict  of  guilty”.5  However,  the  determination 
of  the  punishment  is  in  some  cases  given  by  statute  to  the  jury  in 
criminal  cases.6 

This  guarantee  is  not  infringed  by  a statute  which  provides  that  a 
new  kind  of  a case  shall  be  tried  in  a court  of  equity,  if  such  action  is 
of  an  equitable  nature,  but  the  right  to  trial  by  jury  cannot  be  defeated 
by  merely  declaring  that  certain  kinds  of  cases  shall  be  tried  in  a court 
of  equity.7 

Statutes  provide  that  a jury  may  be  had  in  a number  of  cases 
where  it  may  not  be  constitutionally  demanded,  as  in  divorce  cases  ;8 
the  assessment  of  damages  for  refusal  to  assign  dower;9  proceedings 


1 Turnes  v Brenckle,  249  111.  394  (1911). 

2 Moody  v Found,  208  111.  78  (1904). 

3 See  People  v Hill,  163  111.  186  (1896),  p.  194.  For  contempts,  see  People 
v Seymour,  272  111.  295  (1916)  and  People  v Smith,  275  111.  256  (1917). 

4 People  v Mayor  of  Alton,  233  111.  542  (1908). 

5 People  v Heise,  257  111.  443  (1913),  p.  450. 

6 Hurd’s  Revised  Statutes,  Chap.  38,  Secs.  444-447,  498,  4 99. 

7 Ward  v Farwell,  97  111.  593  (1881).  See  also  People  v Smith,  275  111. 
256  (1917). 

8 Hurd’s  Revised  Statutes,  Chap.  40,  Sec.  7. 

•Hurd’s  Revised  Statutes,  Chap.  41,  Sec.  33. 


838 


under  the  insolvent  debtors  act;10  contests  of  wills;* 11  and  in  proceed- 
ings to  determine  insanity.12  In  chancery  cases  the  court  may  in  its 
discretion  direct  issues  to  be  tried  by  a jury.13  So-called  juries  are 
also  provided  by  statutes  for  coroner’s  inquests14  and  inquests  of 
lunacy.15 

At  common  law  a jury  consisted  of  twelve  men.  In  cases  where  a 
jury  is  guaranteed  this  number  must  be  had,  except  in  cases  tried  be- 
fore justices  of  the  peace.  In  civil  cases  before  justices  of  the  peace, 
the  general  assembly,  under  the  authority  granted  by  the  constitution, 
has  provided  that  the  jury  shall  consist  of  six  or  such  other  number  of 
jurors  not  to  exceed  twelve  that  either  party  may  demand.16 

The  constitution  by  Section  13  of  Article  II  and  Section  14  of 
Article  XI  provides  that  compensation  for  property  taken  or  damaged 
for  public  use  shall  be  ascertained  by  a jury.  These  sections  guarantee 
only  the  type  of  jury  provided  for  elsewhere  in  the  constitution  and 
permit  a jury  of  less  than  twelve  when  the  proceedings  are  before  a 
justice  of  the  peace.17  Statutes  have  been  enacted  providing  that  six 
shall  constitute  a jury  before  justices  of  the  peace  in  proceedings  to 
assess  damages  where  the  highway  commissioners  are  unable  to  agree 
with  the  owners  with  respect  to  the  damages  caused  by  opening,  widen- 
ing or  altering  a road,18  and  to  assess  damages  where  the  farm  drain- 
age commissioners  are  unable  to  procure  the  right  of  way  for  drains 
by  agreement.19 

In  civil  cases  at  common  law  the  jury  may  be  waived  or  the 
parties  may  proceed  to  trial  with  less  than  twelve  jurors.20  In  criminal 
cases  which  can  only  be  prosecuted  upon  indictment,  a jury  of  twelve 
men  is  necessary  in  order  to  confer  jurisdiction  upon  the  court,  and 
unless  the  defendant  pleads  guilty  the  jury  cannot  be  waived,  nor  can 
the  trial  proceed  with  less  than  twelve  jurors.21 

In  distinguishing  earlier  cases,  the  court  said : “In  the  cases  cited 
in  which  it  was  held  in  this  court  that  criminal  accusations  might  be 
lawfully  prosecuted  without  the  intervention  of  a jury,  the  offenses 
were  such  as  might  be  prosecuted  otherwise  than  by  indictment  by 
grand  jury.” 

At  common  law  the  findings  of  fact  by  a jury  were  conclusive  and 
could  not  be  reviewed  by  a court  of  appeal.  The  practice  in  Illinois 
has,  however,  been  different  since  1837,  and  the  appellate  court  is  au- 
thorized by  statute  to  review  the  facts  and  reverse  without  remanding, 
where  it  finds  the  facts  different  from  the  trial  court.22  The  statute 
further  provides  that  if  a finding  of  fact  by  an  appellate  court  in  other 
than  a chancery  case  is  different  from  the  finding  of  the  trial  court,  the 

10  Hurd’s  Revised  Statutes,  Chap.  72,  Sec.  5. 

11  Lyman  v Kaul,  275  111.  11  (1916). 

12  Hurd’s  Revised  Statutes,  Chap.  85,  Sec.  3. 

13  Hurd’s  Revised  Statutes,  Chap.  22,  Sec.  40. 

14  Hurd’s  Revised  Statutes,  Chap.  31,  Sec.  10. 

15  Hurd’s  Revised  Statutes,  Chap.  85,  Sec.  7. 

1C  Hurd’s  Revised  Statutes,  Chap.  79,  Sec.  48. 

17  McManus  v McDonough,  107  111.  95  (1883). 

18  Hurd’s  Revised  Statutes,  Chap.  121,  Secs.  82,  85. 

19  Hurd’s  Revised  Statutes,  Chap.  42,  Sec.  93. 

20  Rehm  v Halverson,  197  111.  378  (1902). 

24  Paulsen  v People,  195  111.  507  (1902). 

22  Hurd’s  Revised  Statutes,  Chap.  110,  Sec.  120.  See  Borg  v C.  R.  I.  & P. 
Ry.  Co.,  162  111.  348  (1896). 


839 


appellate  court  shall  recite  the  facts  as  found,  and  the  judgment  of  th^ . 
appellate  court  shall  be  final  and  conclusive  as  to  all  matters  of  fact  in 
the  controversy.  The  statute  expressly  provides  that  the  supreme 
court  shall  re-examine  cases  brought  from  the  appellate  court  as  to 
questions  of  law  only.23  A statute  was  held  unconstitutional  which 
provided  that  where  a case  was  reversed  upon  a finding  of  fact  differ- 
ent from  the  findings  of  the  trial  court,  the  supreme  court  could  ex- 
amine both  as  to  law  and  fact/on  the  ground  that  it  discriminated  be- 
tween the  parties  in  allowing  the  appellee  to  have  the  facts  reviewed,  if 
the  facts  reviewed  in  the  judgment  of  the  appellate  court  was  against 
him,  whereas  the  appellant  had  no  such  right  if  he  were  defeated.24 

A unanimous  verdict  in  both  civil  and  criminal  cases,  is  a common 
law  requirement,  and  protected  by  the  constitutional  guarantee. 

In  criminal  cases  a jury  is  given  as  a matter  of  right  in  all  courts.. 
In  civil  cases  at  common  law  a jury  is  granted  without  a demand  or 
payment  of  fee  in  all  courts,  except  the  municipal  court  of  Chicago 
and  before  justices  of  the  peace.  The  statutes  require  that  in  the  mu- 
nicipal court  of  Chicago  no  jury  shall  be  had  in  civil  cases  unless  the 
plaintiff  at  the  time  of  filing  his  affidavit  of  claims  or  the  defendant  at 
the  time  of  filing  his  affidavit  of  merits  makes  a demand  and  pays  a fee 
of  six  dollars.25  The  party  demanding  a jury  trial  before  a justice  of 
the  peace  must  first  pay  the  fees  of  the  jurors.26 

The  statutes  prescribe  that  a jury  list  shall  be  made  up  from  the 
legal  voters  of  the  county.  This  list  contains  not  iess  than  one-tenth 
of  the  legal  voters  of  each  town  or  precinct,  and  is  prepared  by  the 
county  board  in  counties  having  a population  of  less  than  250,000.27r 
In  counties  having  a population  of  over  250,000  (Cook  County)  the 
list  is  prepared  by  jury  commissioners,  who  are  appointed  by  the  ma- 
jority of  judges  of  the  courts  of  record  in  the  county.28 

Statutes  provide  that  jurors  must  be  of  the  age  of  twenty-one 
years  or  upwards,  and  under  sixty-five,  in  possession  of  their  natural 
faculties  and  not  infirm  or  decrepit;  free  from  all  legal  exceptions;  of 
fair  character;  of  approved  integrity;  of  sound  judgment;  well  in- 
formed, and  that  they  shall  understand  the  English  language.29 

Certain  officers  and  persons  in  certain  businesses  and  professions 
are  by  statute  exempt  from  jury  service. 

T?i  counties  having  a population  of  less  than  250,000  (all  counties 
except  Cook  County)  the  county  board  each  year  selects  one  hundred 
names  from  the  jury  list  for  each  trial  term  of  the  courts  of  record  in: 
the  county.  These  names  are  put  into  a box  called  the  jury  box.  Names 
are  drawn  from  this  box  as  jurors  are  needed.  In  order  to  insure  im- 
partiality in  the  selection  of  jurors,  it  is  provided  that  the  clerk  who 
draws  the  names  from  the  jury  box  shall  be  blindfolded.30  In  Cook 
County  the  jury  commissioners  select  the  names  of  jurors  from  the 
jury  list;  not  less  than  15,000  names  must  be  kept  in  the  jury  box. 

23  Hurd’s  Revised  Statutes,  Chap.  110,  Sec.  122. 

24  Hecker  v I.  C.  R.  R.  Co.,  231  111.  574  (1908). 

25  Hurd’s  Revised  Statutes,  Chap.  37,  Secs.  293,319. 

26  Hurd’s  Revised  Statutes,  Chap.  79,  Sec.  48. 

47  Hurd’s  Revised  Statutes,  Chap.  78,  Sec.  1. 

28  Hurd’s  Revised  Statutes,  Chap.  78,  Sec.  26. 

29  Hurd’s  Revised  Statutes,  Chap.  78,  Sec.  2. 

30  Hurd’s  Revised  Statutes,  Chap.  78,  Sec.  8. 


840 


The  fee  of  jurors  in  the  circuit  courts,  the  criminal  court  and 
superior  courts  of  Cook  County,  and  in  the  county  counts  in  civil  cases 
at  common  law  and  in  criminal  cases  is  three  dollars  per  day,31  and 
five  cents  per  mile  for  each  mile  they  are  required  to  travel  coming  to 
court  and  returning  home.  In  condemnation  proceedings  before  jus- 
tices of  the  peace,  jurors  receive  one  dollar  per  day,  and  in  all  other 
cases  before  justices  of  the  peace  fifty  cents  per  day.32 


Operation  of  the  jury  system  in  Illinois.  Definite  information 
regarding  the  operation  of  the  jury  system  throughout  the  state  is  un- 
obtainable, but  certain  facts  may  be  obtainable  as  to  Cook  County,  and 
this  discussion  relates  almost  entirely  to  that  county. 

In  1917,  of  the  28,974  men  who  were  called  for  jury  service  in 
Cook  County,  11,968  were  excused.  The  statutes  exempt  many 
classes  of  men  from  jury  service.  It  is  inconvenient  for  persons  to 
leave  their  business  to  perform  jury  service,  and  the  fee  paid  to  jurors 
is  not  large  enough  to  compensate  for  the  time.  Many  of  the  more 
intelligent  and  influential  men  escape  jury  service. 

In  the  circuit  and  county  courts  and  in  the  superior  court  of  Cook 
County,  a jury  trial  in  common  law  cases  is  had  as  a matter  of  right 
without  the  payment  of  an  additional  fee.  The  following  table  shows 
the  amount  of  money  judgments,  the  jury  cost,  and  the  number  of 
cases  disposed  of  in  the  year  1917  in  the  circuit  and  superior  courts  of 


Cook  County : 

Number  of  cases 

Total  disposed  of 

COURT.  money  judgment.  Jury  cost.  Chancery.  Law. 

Circuit  1,714,072.50  105,693.20  7,455  6,127 

Superior  915,477.13  81,550.40  3,632  2,930 


No  statistics  are  available  to  show  how  many  cases  were  dismissed 
for  want  of  prosecution,  defaulted,  settled  outside  of  court,  or  other- 
wise disposed  of.  In  the  circuit  court  many  cases  were  stricken  from 
the  docket  on  a general  call.  The  number  of  chancery  cases  tried  by 
a jury  is  not  shown.  The  statistics  show  that  for  each  common  law 
case  disposed  of,  the  cost  was  $17.25  in  the  circuit  court  and  $27;'§3  in 
the  superior  court.  The  number  of  cases  dismissed  on  the  general  call 
in  the  circuit  court  may  account  for  the  difference  in  jury  costs  in 
these  courts.  In  the  circuit  court,  however,  jurors  for  all  the  judges 
are  kept  together  and  may  be  assigned  from  a common  reservoir  to  any 
judge.  In  the  superior  court,  each  judge  calls  a full  panel  of  jurors 
who  are  used  in  his  court  alone. 

In  some  of  the  cases  which  involve  a small  amount,  the  cost  of  the 
jury  is  sometimes  out  of  proportion  to  the  importance  of  the  case. 
The  fees  of  the  jurors  hearing  a case  amount  to  thirty-six  dollars  a 
day.  To  this  must  be  added  the  cost  of  drawing  and  calling  the  jurors 
and  the  fees  of  the  jurors  who  are  in  attendance  but  are  not  being  used 
in  the  cast  on  trial. 


81  Hurd’s  Revised  Statutes,  Chap.  53,  Sec.  44. 

82  Hurd’s  Revised  Statutes,  Chap.  53,  Sec.  45,  46. 


841 


In  civil  cases  the  selection  of  a jury  ordinarily  is  done  with  dis- 
patch. In  criminal  cases,  however,  the  selection  of  a jury  is  often  a 
long  and  tedious  process.  In  cases  tried  before  the  court  without  a 
jury,  the  time  consumed  in  selecting  a jury  is  saved,  and  usually  the 
opening  statements  and  arguments  are  shorter  when  there  is  no  jury. 

The  following  table  shows  the  number  of  chancery  and  common 
law  cases  disposed  of  in  the  circuit  and  superior  courts  of  Cook  County 
in  1915,  1916  and  1917: 

Superior  court.  Circuit  court. 

Chancery.  Law.  Chancery.  Law. 


.1915 3,575  2,901  4,792  4,211 

1916  3,910  3,968  6,075  3,634 

1917  ..  3,632*  2,930  7,455  6,127 


11,116  9,799  18,322  13,972 

During  this  time  only  three  judges  in  each  court  were  assigned  to 
hear  chancery  cases.  The  table  does  not,  however,  show  the  number 
of  defaults,  dismissals,  and  cases  settled  outside  of  court.  As  many  of 
the  chancery  cases  are  divorce  cases,  and  the  percentage  of  defaults  in 
these  cases  is  high,  no  accurate  comparison  of  the  time  saved  by  a trial 
without  a jury  can  be  made.  Furthermore,  the  testimony  in  many  of 
the  chancery  cases  is  heard  by  masters  in  chancery. 

Under  the  present  system  of  assigning  cases  in  Cook  County,  the 
waiver  of  a jury  in  the  circuit  or  superior  court  does  not  always  tend 
to  expedite  the  determination  of  the  particular  case.  No  judges  are 
assigned  to  hear  civil  non- jury  cases  at  common  law.  Such  cases  are 
put  on  the  calendar  with  the  jury  cases  and  must  be  called  in  their 
order  of  filing.  When  reached,  it  is  often  difficult  to  obtain  a judge  to 
hear  a non- jury  case.  If  a jury  is  in  waiting,  the  judges  usually  desire 
to  utilize  it  to  the  best  advantage,  and  will  often  set  a non-jury  case  for 
hearing  at  a time  when  no  jury  is  in  waiting.  The  non- jury  case  is 
sometimes  heard  peace-meal  and  dragged  out  to  considerable  length. 

Criticism  has  been  made  of  the  jury  system  on  account  of  the  num- 
ber of  cases  in  which  a jury  disagrees.  In  civil  cases  disagreements  are 
not  frequent.  Usually,  the  cases  in  which  there  is  a disagreement  are 
important  and  involve  intricate  questions  of  fact.  In  criminal  cases 
disagreements  are  more  likely  to  occur.  In  the  municipal  court  of  Chi- 
cago from  1908  to  1917,  6,227  trials  by  jury  were  had  in  criminal  and 
quasi-criminal  cases.  Out  of  this  number,  there  were  sixty  disagree- 
ments, or  less  than  one  per  cent.  This  court  has  no  jurisdiction  over 
indictable  offenses.  In  criminal  cases  triable  only  upon  indictment,  as 
a jury  of  twelve  is  essential,  a mistrial  necessarily  results  if  a juror 
becomes  incapacitated  during  the  trial,  or  is  unable  to  serve. 

The  right  to  trial  by  jury  in  civil  cases  has  been  limited  in  the 
municipal  court  of  Chicago.  In  this  court  the  statutes  provide  that  a 
demand  must  be  made  and  a fee  of  six  dollars  paid  in  order  to  have  a 
jury  trial  in  civil  cases.  The  result  of  this  has  been  that  only  a small 
proportion  of  the  civil  cases  in  this  court  are  tried  before  a jury.  The 
following  table  shows  the  number  of  cases  filed  and  the  number  of  jury 
demands  in  civil  cases  from  1907  to  1917 : 


842 


Demands. 


1907 

By 

plaintiff. 

2,454 

By 

defendant. 

1,480 

Total. 

3,934 

Number  of 
suits  filed. 

37,116 

1908 

2,468 

3,136 

5,604 

49,002 

1909 

2,193 

2,566 

4,759. 

47,113 

1910 

, 2,436 

2,880 

5,316 

48,267 

1911 

2,291 

2,931 

5,222 

53,223 

1912 

2,042 

3,162 

5,204 

55,642 

1913 

1,891 

3,671 

5,562 

58,864 

1914 

1,865 

3,655 

5,520 

66,957 

1915 

1,278 

3,610 

4,880 

66,529 

1916 

1,269 

3,939 

5,208 

62,579 

1917 

1,229 

4,083 

5,312 

66,279 

This  table  shows  a marked  decrease  in  the  number  of  jury  de- 
mands by  the  plaintiff,  but  an  increase  in  the  jury  demands  by  the  de- 
fendant. In  1907,  in  one  case  out  of  fifteen  the  plaintiff  demanded  a 
jury.  In  1917,  only  one  demand  was  made  by  the  plaintiff  for  every 
fifty-three  cases  filed.  In  1907,  one  defendant  out  of  twenty-five  de- 
manded a jury  trial,  while  in  1917  one  out  of  sixteen  made  such  a de- 
mand. The  totals  show  a decrease  in  the  proportion  of  cases  in  which 
a jury  was  demanded. 

The  decrease  in  the  number  of  jury  demands  by  plaintiffs  may  to 
some  extent  be  attributed  to  the  fact  that  the  condition  of  the  jury 
calendar  is  such  that  a trial  cannot  be  expected  in  less  than  a year  after 
the  filing  of  the  suit.  A non- jury  case  which  does  not  involve  two 
hundred  dollars  may  be  heard  from  five  to  fifteen  days  after  the  suit  is 
started  and  other  non- jury  cases  are  usually  reached  in  thirty  days  or 
less.  As  the  plaintiff  ordinarily  desires  a speedy  determination  of  his 
case,  he  is  willing  to  waive  a jury  in  order  to  save  the  delay. 

The  increase  in  demands  by  the  defendants  may  perhaps  be  at- 
tributed to  the  delay  gained  by  demanding  a jury,  as  the  defendant  who 
has  a poor  defense,  or  cannot  readily  pay,  may  desire  a delay,  either  for 
the  purpose  of  enabling  him  to  meet  the  demand,  or  for  the  purpose  of 
forcing  a settlement. 

)} 

Suggested  changes  in  jury  system.  As  to  the  following  mat- 
ters suggestions  of  change  are  likely  to  be  made  to  the  constitutional 
convention : 

(1)  Provision  for  less  than  a unanimous  verdict  in  civil  and 
criminal  cases.  The  sentiment  for  change  with  respect  to  criminal 
cases  is  probably  not  so  strong  as  with  respect  to  civil  cases. 

(2)  Limitation  of  use  of  jury  in  civil  cases  to  suits  in  which  a 
jury  is  demanded  by  one  of  the  parties. 

(3)  Extension  of  jury  service  to  women.  Existing  statutes  have 
been  so  interpreted  as  to  exclude  women,33  and  there  is  a possibility 
that  the  constitution  if  unaltered  may  be  held  to  exclude  women. 


83  People  v Krause,  196  111.  App.  140  (1915). 


843 


(4)  Provision  for  waiver  of  jury  trial  in  the  trial  of  indictable 
offenses. 

(5)  The  grant  of  jury  trial  for  the  punishment  of  contempt  in 
injunction  cases.  This  matter  will  be  fully  discussed  in  another 
bulletin. 


Jury  trial  in  other  states.  The  constitution  of  every  state 
guarantees  the  right  to  trial  by  jury  in -criminal  cases,  'in  civil  cases  the 
right  to  trial  by  jury  is  guaranteed  by  the  constitutions  in  all  states  ex- 
cept Louisiana  and  Utah.  Important  changes,  however,  have  been 
made  in  some  of  the  features  of  the  jury  system  as  it  existed  at  com- 
mon law,  and  these  changes  will  be  commented  upon  in  the  following 
paragraphs. 

Number  necessary  to  render  a verdict,  (a)  Civil  Cases.  A less 
than  unanimous  verdict  is  provided  for  or  permitted  in  eighteen  states 
in  civil  cases  in  courts  of  record.  Constitutional  provisions  allowing  a 
less  than  unanimous  verdict  in  civil  cases  are  self-executing  in  Cali- 
fornia, Idaho,  Oregon,  Utah,  Nevada,  Oklahoma,  Texas  and  Montana. 
In  Missouri,  a provision  is  self-executing  as  to  juries  in  courts  of 
record  but  not  as  to  juries  in  courts  not  of  record.34  In  Kentucky, 
Ohio,  South  Dakota,  Arizona,  Mississippi,  Washington,  Minnesota, 
Colorado  and  New  Mexico,  the  constitutions  permit  legislative  provi- 
sion for  a less  than  unanimous  verdict. 

The  constitutions  of  California,  Idaho,  Oregon,  Utah,  Nevada, 
Oklahoma  and  Missouri,35  provide  that  a verdict  may  be  rendered  by 
three-fourths  of  the  jury  in  civil  cases.  The  constitution  of  Montana 
provides  that  two-thirds  of  the  jury  may  render  a verdict  and  the  con- 
stitution of  Texas  that  nine  or  more  jurors  may  return  a verdict.  In 
Nevada  the  constitution  provides  that  the  legislature  may  by  a two- 
thirds  vote  require  a unanimous  verdict. 

The  constitutions  of  Kentucky,  Ohio  and  South  Dakota  permit  the 
legislature  to  provide  that  three-fourths  or  more  of  the  jury  may  return 
a verdict.  In  Arizona,  Mississippi  and  Washington,  the  constitutions 
permit  the  legislature  to  provide  that  nine  or  more  jurors  may  return  a 
verdict. 

The  Minnesota  constitution  is  more  conservative.  It  provides  that 
the  legislature  may  permit  five-sixths  of  the  jury  to  return  a verdict 
after  the  jury  has  deliberated  not  less  than  six  hours.  The  statutes  of 
Minnesota  permit  a five-sixths  verdict  after  the  jury  has  been  delib- 
erating not  less  than  twelve  hours. 

In  Colorado  and  New  Mexico,  the  constitutions  permit  the  legisla- 
ture to  provide  for  a less  than  unanimous  verdict. 

(b)  In  Criminal  Cases.  A unanimous  verdict  of  a jury  of  twelve 
is  required  by  all  states  in  capital  cases. 

34  Sharp  v National  Biscuit  Co.,  179  Mo.  553. 

35  The  constitution  of  Missouri  provides  that  three-fourths  of  the  jury  may 
render  a verdict  in  courts  of  record,  and  that  the  legislature  may  provide  that 
two-thirds  of  the  jury  may  render  a verdict  in  courts  not  of  record. 


844 


In  felonies  a unanimous  verdict  is  required  in  all  states  except 
Louisiana.  Article  116  of  the  Louisiana  constitution  provides  that 
cases  in  which  the  punishment  may  be  at  hard  labor  shall  be  tried  by 
a jury  of  five,  all  of  whom  must  concur  to  render  a verdict;  cases  in 
which  the  punishment  is  necessarily  at  hard  labor  by  a jury  of  twelve, 
nine  of  whom  concurring,  may  render  a verdict.  In  capital  cases, 
Louisiana  requires  the  unanimous  verdict  of  a jury  of  twelve. 

In  cases  below  the  grade  of  felony  the  constitutions  of  Oklahoma 
and  Texas  provide  that  three-fourths  of  the  jury  may  render  a verdict. 
The  constitution  of  Montana  provides  that  in  criminal  cases  below 
the  grade  of  felony  two-thirds  of  the  jury  may  render  a verdict,  and 
the  constitution  of  Idaho  permits  the  legislature  to  provide  for  a two- 
thirds  verdict  in  misdemeanors. 

The  constitution  of  Texas  also  provides  that,  “when  pending  the 
trial  of  any  case,  one  or  more  jurors,  not  exceeding  three,  may  die 
or  be  disabled  from  sitting,  the  remainder  of  the  jury  shall  have 
power  to  render  a verdict.”  By  statute  in  some  states  an  extra  juror 
is  provided  for  such  a contingency. 

Number  of  jurors,  (a)  Civil  Cases.  The  constitution  of  Utah 
provides  that  in  civil  cases  the  jury  shall  consist  of  eight  men  in  courts 
of  general  jurisdiction.  Seven  states36  permit  the  legislature  to  pro- 
vide for  a jury  of  less  than  twelve  men  in  civil  cases  in  courts  of 
record. 

The  constitutions  of  Michigan,  Colorado,  Wyoming  and  South 
Dakota  permit  the  legislature  to  provide  for  a jury  of  less  than  twelve. 
The  constitution  of  New  Jersey  permits  the  legislature  to  provide 
for  a jury  of  six  where  the  amount  of  the  controversy  is  less  than 
fifty  dollars. 

In  Florida  the  constitution  provides  that  in  civil  cases  the  number 
of  jurors  may  be  fixed  by  law,  but  at  not  less  than  six.  The  statutes 
provide  that  in  civil  cases  a jury  of  six  shall  be  sufficient.  The  Vir- 
ginia constitution  provides  that  the  general  assembly  may  limit  the 
number  of  jurors  in  civil  cases  in  circuit  and  corporation  courts  to 
not  less  than  five  in  cases  cognizable  by  justices  of  the  peace,  or  to 
not  less  than  seven  in  cases  not  so  cognizable.  The  statutes  provide 
that  the  jury  shall  consist  of  five  men  in  cases  cognizable  by  a justice 
of  peace  and  of  seven  in  cases  not  so  cognizable.  It  is  further  pro- 
vided by  statute  in  Virginia  that  the  jury  may  be  waived  by  consent, 
and  that  each  party  may  select  one  person  who  is  eligible  as  a juror, 
and  the  two  so  selected  may  choose  another  with  like  qualifications, 
and  the  three  so  selected  shall  constitute  a jury. 

The  constitution  of  Illinois  provides  that  in  the  trial  of  civil 
cases  before  justices  of  the  peace  a jury  of  less  than  twelve  may  be 
authorized  by  law.  The  statutes  provide  that  in  cases  before  justices 
of  the  peace  the  number  of  jurors  shall  be  six,  or  any  greater  number 
not  exceeding  twelve  as  either  party  may  desire.37 


30  Michigan,  Colorado,  "Wyoming,  South  Dakota,  New  Jersey,  Florida,  Vir- 
ginia. 

37  Hurd’s  Revised  Statv  tes,  Chap.  79,  Sec.  48. 


845 


(b)  in  Criminal  Cases.  In  the  number  of  jurors  in  criminal 
case  fqwer  changes  have  been  made  than  in  civil  cases. 

The  constitution  of  Utah  provides  that  capital  cases  shall  be  tried 
by  a jury  of  twelve  men,  but  that  eight  shall  constitute  a jury  in  all 
other  cases. 

The  constitution  of  Florida  ( permits  the  legislature  to  fix  the 
number  of  jurors  at  not  less  than  six  in  any  case.  The  Florida 
statutes  provide  that  twelve  men  shall  constitute  a jury  to  try  all 
capital  cases,  and  six  men  shall  constitute  a jury  in  all  other  criminal 
cases. 

The  constitution  of  Louisiana  provides  that  all  cases  in  which 
the  punishment  may  not  be  at  hard  labor  shall  be  tried  by  the  judge 
without  a jury;  cases  in  which  the  punishment  may  be  at  hard  labor 
shall  be  tried  by  a jury  of  five,  and  cases  in  which  the  punishment  is 
necessarily  at  hard  labor  or  capital  by  a jury  of  twelve. 

The  constitution  of  Michigan  permits  the  legislature  to  authorize 
a trial  by  less  than  twelve  men,  and  the  constitution  of  Virginia  a jury 
of  less  than  twelve  where  the  punishment  is  not  by  death  of  confine- 
ment in  the  penitentiary.  Several  states  permit  a jury  of  less  than 
twelve  in  inferior  courts. 

Waiver  of  Jury,  (a)  Civil  Cases.  At  common  law  a jury  in 
civil  cases  may  be  waived  by  consent  of  the  parties  in  actions  at  law, 
but  unless  so  waived  a trial  by  jury  is  had,  and  this  is  the  rule  in  Illi- 
nois with  the  qualifications  already  noted  as  to  justices  of  the  peace 
and  the  municipal  court  of  Chicago.  In  several  states  this  rule  has 
been  changed. 

The  Texas  constitution  provides  that  no  jury  shall  be  empan- 
eled in  civil  cases  unless  demanded  by  one  of  the  parties,  and  a jury 
fee  paid  into  court.  The  statutes  of  Texas  fix  this  fee  at  five  dollars. 

The  constitutions  of  Michigan  and  Utah  provide  that  the  jury 
shall  be  deemed  waived  in  civil  cases  unless  demanded,  and  the  con- 
stitution of  West  Virginia  provides  that  the  jury  in  civil  cases  shall 
be  waived  unless  required  by  either  party. 

The  constitution  of  Maryland  provides  that  the  laws  or  the  rules 
of  the  supreme  court  of  Baltimore  may  require  all  cases  in  any  of  the 
courts  in  Baltimore  City  to  be  tried  before  the  court  without  a jury 
unless  the  litigants  or  some  one  of  them  shall  elect  to  have  their  cause 
tried  before  a jury. 

(b)  Criminal  Cases.  At  common  law  the  general  rule  is  that  a 
jury  cannot  be  waived  in  felonies,  but  it  is  generally  held  that  the 
jury  may  be  waived  in  misdemeanors.  The  constitutions  of  Cali- 
fornia, Idaho  and  Montana  provide  that  the  jury  may  be  waived  in 
cases  not  amounting  to  a felony,  and  the  constitution  of  Vermont  pro- 
vides that  it  may  be  waived  where  the  offense  is  not  punishable  by 
death  or  imprisonment  in  the  penitentiary. 

The  constitutions  of  Minnesota  and  Wisconsin  provide  that  the 
jury  may  be  waived  in  all  cases  in  manner  prescribed  by  law.  The 
statutes  of  Wisconsin  permit  the  accused  to  waive  the  jury  and  be 
tried  by  less  than  twelve  men. 


846 


The  Maryland  constitutional  provision  with  respect  to  waiver 
of  jury  trial  in  the  courts  of  Baltimore  City  relates  to  criminal  as  well 
as  civil  cases. 

While  no  provision  is  made  in  the  Louisiana  constitution  for  a 
waiver  of  the  jury,  it  is  provided  that  in  cases  where  the  punishment 
is  not  by  hard  labor  the  trial  shall  be  by  the  court  without  a jury. 


Operation  of  changes  in  jury  system.  With  respect  to  the 
operation  of  changes  in  the  jury  system,  a number  of  letters  were 
written  to  judges  and  lawyers  in  other  states,  and  replies  to  these 
letters  throw  some  light  upon  the  problems  here  under  discussion. 

In  Michigan,  Texas  and  Utah  a jury  is  deemed  to  be  waived  in 
civil  cases  unless  demanded  by  one  of  the  parties;  and  in  Michigan 
and  Texas  this  demand  must  be  accompanied  by  the  payment  of  a fee. 
This  plan  seems  to  have  worked  well  in  these  states,  although  the 
information  available  indicates  that  jury  trial  is  demanded  in  a large 
number  of  cases  in  Utah.  In  Texas  jury  trial  is  demanded  in  probably 
not  more  than  one  out  of  four  cases. 

Ohio  by  constitutional  amendment  in  1912  authorized  legislation 
permitting  three-fourths  verdict,  in  civil  cases,  and  the  three-fourths 
system  established  by  law,  is  reported  to  have  given  satisfaction.  Re- 
ports from  California  are  that  the  three-fourths  verdict  in  civil  cases 
gives  general  satisfaction,  and  the  same  statement  may  be  made  as  to 
Utah  and  Idaho.  In  Montana  the  two-thirds  verdict  in  civil  cases 
is  reported  to  give  satisfaction,  and  in  Minnesota  there  seems  no 
desire  to  alter  the  plan  of  a five-sixths  verdict  after  twelve  hours 
deliberation.  The  only  legislation  so  far  enacted  in  South  Dakota 
with  respect  to  this  matter  is  that  of  1893  permitting  three-fourths 
verdicts  in  minor  civil  cases ; efforts  to  extend  the  plan  have  failed 
either  in  the  legislature  or  on  a popular  referendum,  the  proposal 
for  a verdict  of  ten  having  been  defeated  upon  a popular  vote  in  1916. 

In  Montana,  two-thirds  verdicts  in  criminal  cases  below  the 
grade  of  felony  have  worked  satisfactorily,  and  the  same  is  true  of 
five-sixths  verdicts  in  misdemeanor  cases  in  Idaho. 


Suggested  changes  in  criminal  jury.  Two  suggestions  have 
been  made  which  do  not  involve  a very  radical  departure  from  the 
jury  system  in  this  state.  (1)  It  has  been  suggested  that  the  state 
be  permitted  to  ask  for  a change  of  venue  in  criminal  cases*  such  a 
change  upon  the  application  of  the  state  is  permitted  by  the  constitu- 
tions of  Kentucky  and  South  Carolina.  (2)  It  is  suggested  that  the 
accused  be  permitted  to  waive  jury  trial  in  felony  cases,  or  at  least 
to  waive  trial  by  a jury  of  twelve  when  a juror  becomes  disqualified 
during  the  trial. 


847 


IX.  POWER  OF  THE  COURTS  TO  DECLARE  LAWS 
UNCONSTITUTIONAL. 


Development  of  power  in  Illinois.  The  Illinois  constitution  of 
1818  imposed  few  limitations  upon  legislative  power  and  associated 
the  judges  of  the  supreme  court  with  the  governor  in  the  exercise  of 
the  veto  power  over  legislation.  The  judges  as  members  of  the  council 
of  revision  had  power  to  present  objections  to  a measure  before  it 
became  law,  although  the  measure  might  be  passed  over  such  ob- 
jections by  a majority  of  the  whole  number  of  members  elected  to 
each  house.  Under  the  circumstances  it  was  to  be  expected  that  few 
decisions  upon  the  constitutionality  of  laws  would  be  rendered  under 
the  first  constitution  of  Illinois.  During  the  period  from  1818  to 
1848,  there  were  twenty-nine  cases  involving  the  constitutionality  of 
seventeen  laws.  In  seven  cases,  involving  four  laws,  statutes  were 
held  invalid,  but  only  two  of  the  statutes  were  held  invalid  upon  state 
constitutional  grounds. 

The  constitution  of  1848  materially  increased  the  limitations  upon 
legislative  power,  and  practically  recognized  by  the  constitution  itself 
a power  in  the  courts  to  declare  laws  unconstitutional.  Of  the 
111  cases  in  which  statutes  were  contested  upon  constitutional  grounds 
between  1848  and  1870,  much  the  greater  number  dealt  with  constitu- 
tional limitations  introduced  in  1848.  Sixty-five  of  the  cases  related  to 
local  and  special  legislation.  With  the  increased  number  of  decisions 
upon  questions  of  constitutionality,  the  passing  upon  such  questions 
by  the  court  came  to  be  a much  less  solemn  and  responsible  function 
than  before  1848,  and  in  1870  the  supreme  court  passed  upon  the  con- 
stitutionality of  statutes  in  two  cases  when  the  question  was  not  neces- 
sarily involved. 

In  the  constitutional  convention  of  1870,  the  power  of  the  courts 
to  pass  upon  the  constitutionality  of  legislation  was  recognized  with- 
out question,  and  no  action  was  taken  upon  a proposal  “that  the  su- 
preme court  alone  shall  have  power  to  decide  questions  arising  upon 
the  constitutionality  of  any  act  of  the  legislature;  and  that  no  act  of 
the  legislature  shall  be  declared  unconstitutional  by  the  supreme  court 
except  upon  unanimous  concurrence  of  all  the  judges  thereof.”1 

The  action  of  the  convention  of  1869-70  indicates  a grave  dis- 
trust of  legislative  power.  Numerous  limitations  upon  the  legislature 
were  placed  in  the  constitution  of  1870.  Detailed  provisions  against 
special  legislation,  limitation  as  to  the  form,  content  and  method  of 
enacting  measures,  and  numerous  other  limitations  hedge  about  the 
power  of  the  general  assembly  on  every  side.  The  whole  attitude  of 


1 Debates,  Constitutional  Convention  of  1870  p.  321 


848 


the  convention  indicates  that  this  mass  of  new  limitations  was  to  be 
enforced  by  the  courts. 

From  1870  to  the  end  of  the  June  term,  1913,  the  supreme  court 
passed  upon  789  cases  involving  the  constitutionality  of  statutes  and  in 
more  than  a fourth  of  these  cases  statutes  were  declared  invalid. 
To  a great  extent  these  cases  were  based  upon  limitations 
which  first  appeared  in  the  constitution  of  1870,  or  upon  limitations 
whose  stringency  was  then  increased.  For  example,  between 
1870  and  1913,  seventy-three  cases  dealt  with  the  requirements 
as  to  titles  of  acts,  twenty-five  with  technical  requirements  as  to  pas- 
sage of  laws,  and  eighty-seven  with  special  legislation.  The  number 
of  cases  involving  constitutional  questions  has  steadily  increased,  and 
the  cases  between  1890  and  1913  outnumbered  those  between  1818 
and  1889.  Not  only  has  the  total  number  of  cases  steadily  increased, 
but  there  has  been  an  increase  in  the  proportion  of  cases  in  which 
statutes  have  been  declared  unconstitutional,  and  the  statutes  declared 
unconstitutional  have  in  recent  years  been  relatively  more  important 
than  previously. 

It  is  customary  now  to  raise  the  question  of  constitutionality  as 
a matter  of  course  in  cases  which  involve  new  enactments,  and  in  view 
of  the  fact  that  statutes  are  declared  unconstitutional  in  a number  of 
cases  at  each  term  of  the  supreme  court,  a declaration  of  unconstitu- 
tionality has  necessarily  lost  the  extraordinary  and  solemn  charac- 
teristics which  it  may  once  have  possessed.  A function  ceases  neces- 
sarily to  be  solemn  and  extraordinary  when  it  is  exercised  with  great 
frequency.  The  steadily  increasing  bulk  of  cases  involving  constitu- 
tional questions  may  in  great  part  be  explained  by  (1)  the  growth  of 
specific  limitations  upon  the  general  assembly  in  the  constitution 
itself;  (2)  the  extended  use  of  the  “due  process  of  law”  limitation, 
and  of  the  limitation  against  the  enactment  of  local  or  special  laws 
granting  “any  special  or  exclusive  privilege,  immunity  or  franchise 
whatever”,  and  (3)  to  the  increased  persistence  with  which  constitu- 
tional objections  to  statutes  have  been  urged  upon  the  court.  It  may 
probably  be  said  of  judicial  decisions  in  any  field  that  the  extent  to 
which  a particular  doctrine  is  applied  depends  to  a large  extent  upon 
the  persistence  of  counsel  in  the  argument  of  cases. 

The  extended  application  of  “due  process  of  law”  and  of  other 
broad  phrases  in  the  constitution  requires  a further  discussion.  The 
constitution  of  1818  and  1848  contained  the  provision  that  no  one  shall 
be  “deprived  of  his  life,  liberty  or  property  but  by  the  judgment  of  his 
peers  or  the  law  of  the  land.”  In  the  constitution  of  1870  the  now  fa- 
miliar phrase  “due  process  of  law”  appears,  but  apparently  without  any 
change  in  the  meaning  of  the  constitutional  guarantee.  The  use  of  this 
clause,  however,  has  been  enormously  expanded.  Before  1848  there 
was  but  one  decision  (in  1845)  based  upon  this  provision,  and  in  that 
case  “due  process”  was  regarded  as  a limitation  upon  procedure  only. 
Between  1848  and  1870  there  were  nine  cases  (in  a majority  of  which 
statutes  were  upheld),  and  with  1864  began  the  tendency  to  employ  this 
limitation  as  one  applying  to  the  substance  of  statutes,  as  well  as  to 
procedure.  Since  1870,  and  more  especially  since  1886  the  principle 


849 


has  developed,  not  only  in  Illinois,  but  also  in  the  other  states  and  in 
the  United  States  supreme  court,  that  a statute  deprives  of  due  process 
of  law  if  it  singles  out  certain  persons  or  classes  and  imposes  upon  them 
burdens  not  imposed  on  others  in  like  conditions,  or  if  it  seeks  to  impose 
regulations  regarded  by  the  court  as  unduly  interfering  with  private 
rights. 

This  extended  application  of  due  process  of  law  .is  one  which,  of 
course,  makes  the  term  impossible  of  definition,  and  no  courts  have 
sought  to  define  it.  The  necessary  absence  of  a definite  standard  as  to 
what  may  or  may  not  be  done  under  the  due  process  clause  has,  of 
course,  made  difficulty  for  the  legislatures  of  this  and  other  states.  Due 
process  as  a limitation  upon  what  the  legislature  may  do  is  broad  and 
indefinite ; cfue  process  as  a limitation  of  what  procedure  is  proper 
under  the  constitution  or  statutes  has  on  the  whole  a fair  degree  of  defi- 
niteness. During  the  period  between  1870  and  1913,  115  cases  arose  on 
the  due  process  of  law  clause  in  Illinois,  and  of  these  seventy-four  arose 
between  1900  and  1913. 

From  the  preceding  discussion,  it  may  be  concluded  that  (1)  the 
great  bulk  of  increase  in  the  exercise  of  this  power  by  the  courts  is  to 
be  attributed  to  increased  limitations  placed  in  the  constitution  itself ; 
(2) that  the  most  important  single  increase  has  been  due  not  to  an  added 
limitation  in  the  constitution  itself,  but  to  the  extended  application  of 
the  “due  process  of  law”  clause,  and  (3)  that  declaring  a statute  un- 
constitutional has  now  ceased  to  be  a solemn  and  extraordinary  func- 
tion. 

One  of  the  most  serious  problems  which  has  presented  itself  with 
respect  to  the  exercise  of  this  power  is  that  substantially  identical 
clauses  (such  as  the  due  process  of  law  clause)  in  the  various  state  con- 
stitutions and  in  the  constitution  of  the  United  States  have  been  differ- 
ently construed  by  different  courts.  The  supreme  court  of  the  United 
States,  on  the  whole,  has  been  more  liberal  in  the  construction  of  “due 
process  of  law”  than  have  many  of  the  state  courts,  and  in  a number  of 
cases  statutes  which  are  “due  process  of  law”  under  the  federal  consti- 
tution are  violative  of  “due  process  of  law”  as  construed  by  the  su- 
preme court  of  Illinois. 

The  earlier  doctrinex>f  the  courts  was  that  the  question  of  the  con- 
stitutionality of  a statute  should  be  decided  only  as  an  incident  to  the 
determination  of  a bona  fide  controversy  between  parties.  For  a num- 
ber of  years,  however,  the  question  of  constitutionality  has  been  decided 
primarily  in  cases  where  a person  to  be  affected  by  a statute  seeks  an 
injunction  to  prevent  the  enforcement  of  the  statute,  or  where  a person 
seeks  a mandamus  to  compel  action  under  a statute.  It  may,  of  course, 
be  possible  to  contend  that  in  such  cases  the  rights  of  the  parties  are 
the  fundamental  issue  and  the  question  of  constitutionality  a mere  in- 
cident, but  as  a matter  of  actual  fact,  in  most  cases  squarely  involving 
the  validity  of  a statute,  the  question  of  constitutionality  is  the  one  on 
trial,  even  though  it  is  presented  in  the  form  of  a bona  fide  controversy. 
This  situation  is  well  recognized  by  counsel  in  substantially  all  of  the 
cases  involving  the  validity  of  important  statutes,  and  although  it  is 
probably  true  that  there  are  few  collusive  cases  with  respect  to  this 


850 


matter,  agreed  cases  to  raise  the  issue  of  constitutionality  are  not  un- 
common in  Illinois  and  in  other  states. 

Ordinarily  the  question  of  constitutionality  must  first  be  presented 
to  a trial  court,  although  some  important  cases  may  be  brought  orig- 
inally in  the  supreme  court.2  The  making  of  the  constitutional  issue 
in  the  trial  court  has,  however,  in  this  country  become  a rather  formal 
matter,  in  order  that  an  appeal  may  be  perfected  to  the  supreme  court. 
The  appellate  courts  of  this  state  have  no  jurisdiction  to  pass  upon 
questions  of  constitutionality,  and  if  a question  as  to  the  validity  of  a 
statute  has  been  raised  in  the  trial  court,  taking  the  case  to  an  appellate 
court  waives  this  ground  of  objection.3 


Proposals  with  respect  to  judicial  power.  Numerous  critic- 
cisms  have  been  made  of  the  exercise  by  the  courts  of  their  power  to 
declare  laws  unconstitutional ; and  a number  of  proposals  have  been 
made  with  respect  to  this  matter.  Such  proposals  will  be  discussed 
briefly  below. 

(1)  One  of  the  simplest  methods  of  reducing  the  power  of  the 
courts  to  declare  laws  unconstitutional  is  that  of  reducing  the  number 
of  state  constitutional  limitations.  It  has  already  been  suggested  that 
in  Illinois  the  greater  part  of  the  increase  in  cases  involving  questions 
of  constitutionality  has  been  due  to  the  introduction  of  new  constitu- 
tional limitations.  Limitations  regarding  the  procedure  in  the  enact- 
ment of  legislation  and  with  respect  to  local  and  special  legislation  have 
been  responsible  for  the  annulment  of  a large  proportion  of  the  statutes 
declared  unconstitutional  in  this  state  since  1870,  and  many  of  the 
statutes  declared  unconstitutional  on  these  grounds  have  been  im- 
portant ones. 

The  constitution  of  Illinois  provides  in  detail  that  various  types 
of  local  and  special  legislation  shall  not  be  enacted.  The  constitution 
also  contains  a!  provision  that  “in  all  other  cases  where  a general  law 
can  be  made  applicable,  no  special  law  shall  be  enacted.”  In  Illinois, 
as  in  substantially  all  other  states,  this  provision  is  interpreted  by  the 
courts  as  directed  to  the  judgment  of  the  legislature  and  not  as  an  en- 
largement of  judicially  enforcible  limitations. 

Some  states  have  adopted  a plan  with  respect  to  local  and  special 
legislation  different  from  that  adopted  in  Illinois.  Missouri,  in  1875, 
introduced  into  its  constitution  a provision  that  “in  all  other  cases 
where  a general  law  can  be  made  applicable  no  local  or  special  law 
shall  be  enacted ; and  whether  a general  law  could  have  been  made 
applicable  in  any  case  is  hereby  declared  a judicial  question,  and  as 
such  shall  be  judicially  determined  without  regard  to  any  legislative 
assertion  on  that  subject.”  Similar  clauses  have  been  adopted  in 
Minnesota  (1892),  Alabama  (1901),  Kansas  (1906)  and  Michigan 
(1908).  In  Michigan  there  is  an  added  provision  that  no  local  or 

2 See,  for  example,  the  case  of  State  ex  rel  Gullett  v McCullough,  254  111.  9 
(1912). 

3 Griveau  v South  Chicago  Ry.  Co.,  213  111.  633  (1905);  Indiana  Millers 
Mutual  Fire  Ins.  Co.  v People,  170  111.  474  (1898). 


851 


special  law  “shall  take  effect  until  approved  by  a majority  of  the 
electors  voting  thereon  in  the  district  to  be  affected”.  Michigan  does 
not  in  great  detail  forbid  local  and  special  legislation,  but  has  accom- 
plished the  same  purpose  more  effectively  by  requiring  a local  vote 
upon  such  legislation  and  by  making  the  necessity  for  a special  act  a 
judicial  question.  The  plan  adopted  in  Michigan  definitely  enlarges 
judicial  power  over  legislation,  but  is  intended  to  submit  to  the 
court  a specific  question  of  fact.  If  the  court  confines  itself  to  the 
question  so  submitted,  little  difficulty  will  result,  and  the  plan  adopted 
in  Michigan  is  likely  to  prove  more  satisfactory  than  that  of  pro- 
hibiting in  detail  various  types  of  special  legislation,  and  thus  raising 
a large  number  of  questions  for  judicial  determination.  That  is 
the  enlargement  of  the  judicial  power  with  respect  to  this  matter  may 
result  in  an  actual  simplification  of  the  judicial  function  of  passing 
upon  the  constitutionality  of  statutes.  The  danger  of  the  plan  adopted 
in  Michigan  is  that  the  term  “special  legislation”  may  be  construed  as 
meaning  any  legislation  which,  in  the  opinion  of  the  court,  deprives 
of  what  it  regards  as  proper  rights  or  makes  a classification  of  which 
the  court  disapproves.  There  has  been  a tendency  of  this  character 
in  the  interpretation  of  this  clause  in  Missouri  and  Minnesota,  and  a 
basis  for  such  an  interpretation  exists  in  Illinois  in  the  present  inter- 
pretation of  the  special  privileges  and  immunities  clause  of  Article 
4,  section  22,  of  the  constitution.4 

Some  limitations  upon  legislative  procedure  were  imposed  by  the 
constitution  of  1848,  but  these  restrictions  were  increased  in  1870. 
It  would  probably  be  unwise  to  do  away  with  many  of  these  provisions, 
but  the  procedural  limitations  were  primarily  intended  to  guard 
against  fraud  or  surprise  in  the  enactment  of  legislation,  and  it  has 
been  urged  that  it  is  unnecessary  for  the  accomplishment  of  their 
purpose  that  legislation  should  be  for  an  indefinite  time  subject  to 
overthrow  because  of  some  formal  defect  in  its  enactment.  It  has, 
for  this  reason  been  suggested  that  the  value  of  most  of  the  procedural 
limitations  may  be  fully  preserved  and  difficulties  avoided  by  restrict- 
ing to  a fixed  period,  possibly  one  year,  the  opportunity  of  attacking 
legislation  because  of  formal  defects.  Were  this  done,  some  special 
proceeding  would  have  to  Te  devised  for  the  purpose,  in  order  that  a 
contest  within  the  limited  time  could  be  brought,  even  though  no  bona 
fide  controversy  under  the  statute  had  arisen.  For  this  purpose,  a 
New  Jersey  plan  might  be  copied.  A New  Jersey  Act  of  1873  provided 
that  within  one  year  after  an  act  or  resolution  had  been  filed  with  the 
secretary  of  state,  if  “the  governor  or  the  person  administering  the 
government  shall  have  reason  to  believe  that  any  such  law  or  joint 
resolution  was  not  duly  passed  by  both  houses  of  the  legislature,  or 
duly  approved  as  required  by  the  constitution,  he  may,  in  his  discre- 
tion, direct  the  attorney  general  to  present  a petition  to  the  supreme 
court  of  this  state,  setting  forth  the  facts  and  circumstances,  and  pray- 
ing that  the  said  law  or  joint  resolution  may  be  declared  null  and  void”.5 

4 Upon  this  subject  see  F.  E.  Merrills:  Some  Aspects  of  Judicial  Control 

over  Special  and  Local  Legislation,  47  Am.  Law  Review,  351. 

5 See  in  re  "An  Act  to  Amend  an  Act  entitled  ‘An  Act  Concerning  Public 
Utilities”’,  83  N.  J.  Law  303  (1912). 


852 


Such  a plan  as  that  indicated  with  respect  to  the  formal  require- 
ments of  enactment  of  legislation  is  directly  in  line  with  the  action 
of  the  supreme  court  of  Illinois  in  declining  to  hear  formal  objections 
to  a statute  which  had  been  upheld  on  the  merits  and  had  been  in 
force  for  some  time.6 

(2)  One  important  influence  in  the  increasing  number  of  judicial 
declarations  of  unconstitutionality  is  that  which  depends  not  upon 
limitations  expressly  limiting  legislative  power,  but  upon  limitations 
implied  from  detailed  provisions  inserted  into  the  constitution.  The 
subject  of  implied  limitations  is  fully  discussed  in  the  pamphlet  deal- 
ing with  the  legislative  department,  but  it  is  of  importance  here  to  call 
attention  to  the  fact  that  when  a provision  is  placed  in  the  constitution 
laying  down  a rule  as  to  legislative  policy  or  authorizing  or  command- 
ing legislation,  such  a provision  is  normally  interpreted  as  implying 
a prohibition  of  legislative  action  otherwise  than  in  the  manner  speci- 
fied. In  many  cases  provisions  have  been  placed  in  state  constitutions 
which  were  intended  for  the  purpose  of  authorizing  legislation  or  for 
the  purpose  of  laying  down  a rule  of  policy  (which  might  properly 
have  been  dealt  with  by  legislation)’  without  the  intention  that  the 
provision  so  inserted  should  be  construed  as  a limitation  upon  legisla- 
tive power.  Since  about  1840  a large  and  growing  number  of  de- 
cisions declaring  statutes  unconstitutional  has  been  based  upon  what 
may  be  termed  “implied  limitations” ; that  is,  upon  constitutional  pro- 
visions not  primarily  intended  as  limitations,  and  not  primarily  dealing 
with  matters  of  fundamental  or  permanent  importance.  Provisions  of 
this  character,  it  may  be  properly  argued,  should  not  be  in  a constitu- 
tion at  all,  but  it  should  be  borne  in  mind  that  if  such  provisions  are 
placed  in  a constitution  they  will  be  interpreted  in  accordance  with 
now-establshed  judicial  doctrine  as  limitations  upon  the  legislature, 
and  will  result  in  a continuance  of  a series  of  technical  decisions  hold- 
ing statutes  unconstitutional.  This  matter  is  commented  upon  sepa- 
rately here,  because  it  raises  a somewhat  different  type  of  issue,  and 
presents  also  the  question  as  to  what  type  of  constitution  it  is  desired 
to  adopt. 

(3)  The  growth  of  decisions  under  the  “due  process  of  law” 
clause  has,  as  already  suggested,  not  been  due  to  the  introduction  of 
any  additional  limitations  upon  the  general  assembly.  A plan  has 
been  suggested  for  the  purpose  of  meeting  to  some  extent  certain  of 
the  criticisms  with  respect  to  the  state  court’s  application  of  the  “due 
process  of  law”  clause.  The  constitution  of  Illinois  provides  that  “no 
person  shall  be  deprived  of  life,  liberty  or  property  without  due  pro- 
cess of  law”.  The  Fourteenth  Amendment  to  the  constitution  of  the 
United  States  provides  “nor  shall  any  state  deprive  any  person  of  life, 
liberty  or  property  without  due  process  of  law ; nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  the  laws”.  These 
limitations  clearly  duplicate  each  other,  and  the  provision  in  the 
national  constitution  is  apparently  broader. 

The  state  supreme  court  is  the  final  judicial  interpreter  of  the 
state  constitution,  and  “due  process  of  law”  in  the  state  constitution 

6 Gifford  v Culver,  261  111.  530  (1914);  Greenberg  v Chicago^  256  111.  213 
(1932). 


853 


means  what  the  supreme  court  of  Illinois  interprets  it  to  mean.  Under 
these  circumstances,  it  is  not  surprising  to  find  that  “due  process” 
often  means  one  thing  in  Illinois,  another  thing  in  another  state,  and 
something  still  different  as  interpreted  by  the  supreme  court  of  the 
United  States.  Under  a provision  identical  with  the  Fourteenth 
Amendment,  the  supreme  court  of  Illinois  has,  in  a number  of  cases, 
annulled  legislation  (as  have  other  higher  state  courts)  when  similar 
legislation  has  been  upheld  by  the  United  States  supreme  court.  The 
Illinois  supreme  court  has  sometimes  reached  a narrower  view  as  to 
the  validity  of  laws  than  the  United  States  supreme  court,  through 
broad  interpretation  given  to  the  constitutional  provision  against 
special  or  local  laws  conferring  special  privileges,  immunities  or  fran- 
chises. 

There  is  distinct  value  in  having  broad  constitutional  provisions 
for  the  protection  of  private  rights,  and  such  broad  constitutional 
guarantees  are  probably  incapable  of  definite  interpretation,  because 
the  content  of  rights  to  be  protected  under  them  is  not  itself  definite. 
However,  a large  part  of  the  value  of  such  broad  clauses  is  lost  un- 
less they  are  construed  uniformly,  and  a basis  for  criticism  may  be 
found  because  of  the  fact  that  identical  clauses  are  construed  dif- 
ferently by  different  courts.  The  clauses  of  the  Fourteenth  Amend- 
ment finally  obtain  uniform  interpretation  for  the  whole  country 
through  the  United  States  supreme  court,  and  it  has  been  urged  that  if 
it  be  assumed  that  the  federal  clause,  as  uniformly  interpreted  by  the 
United  States  supreme  court,  will  adequately  protect  private  rights, 
there  is  no  longer  a necessity  for  duplicating  clauses  in  state  constitu- 
tions. It  is  urged  that  state  constitutional  provisions  of  this  sort  and 
state  decisions  based  thereon  serve  merely  to  retard  a final  and  uniform 
settlement  of  questions  of  public  policy  insofar  as  such  settlement 
is  dependent  upon  constitutional  constructions.  Of  course,  it  may  be 
urged  (and  perhaps  correctly)  that  the  power  in  the  state  courts  to 
apply  such  a constitutional  provision  independently  of  the  attitude 
of  the  United  States  supreme  court  may  occasionally  prove  of  ad- 
vantage, but  on  the  other  hand  it  is  urged  that  the  advantage  is  more 
than  offset  by  the  criticisms  which  courts  bring  upon  themselves  by 
different  constructions  of  identical  constitutional  provisions. 

If  the  “due  process  of  law”  clause  and  other  provisions  dupli- 
cating federal  constitutional  limitations  upon  the  state  were  removed 
from  the  state  constitution,  the  state  courts  would  then  base  their 
decisions  upon  the  federal  clauses  and  would,  as  a matter  of  principle, 
be  bound  by  decisions  rendered  by  the  United  States  supreme  court. 
Under  federal  statutes,  a case  may  be  taken  to  the  supreme  court  of 
the  United  States  from  the  highest  state  court  by  writ  of  error  when 
the  decision  of  a state  court  is  in  favor  of  the  validity  of  a state 
statute  attacked  upon  federal  grounds.  Where  the  decision  of  the  state 
court  is  against  the  validity  of  the  state  statute  on  federal  grounds, 
the  United  States  supreme  court  may  by  certiorari  hear  the  case  and 
decide  the  federal  issue  itself.  Although  it  is  much  easier  to  obtain 
the  review  of  a state  decision  in  favor  of  the  validity  of  a state  statute 
on  federal  grounds  than  it  is  to  obtain  a review  of  a decision  against 
a state  statute  upon  the  same  grounds,  yet  the  federal  statutes  do 


854 


permit  a means  of  obtaining  a uniform  interpretation  of  the  federal 
limitations  for  the  whole  country. 

(4)  It  has  been  urged  that  there  should  be  a more  definite  as- 
surance that  the  case  made  upon  the  constitutionality  of  a statute  is 
a real  case  and  that  all  questions  upon  which  constitutionality  depends 
are  properly  presented  to  the  court.  If  the  case  is  one  between  private 
parties,  the  state  may  now  intervene  through  its  attorney  general.  If 
the  case  is  one  in  which  an  individual  seeks  to  enjoin  action  by  a state 
official,  the  state  attorney  general  would,  as  a matter  of  course,  rep- 
resent the  state  official.  But  when  a case  involves  an  important 
statute,  there  is  no  assurance  that  the  public  interest  in  the  statute 
will  be  adequately  represented,  and  in  some  instances  in  recent  years 
the  state  attorney  general,  nominally  representing  the  state  in  support- 
ing the  statute,  has  already  in  an  official  opinion  declared  that  the 
statute  is  unconstitutional. 

Where  the  state  or  a state  official  is  not  a party,  the  presentation 
of  the  case  for  and  against  a statute  is  in  the  hands  of  counsel  of  pri- 
vate parties,  and  the  parties,  so  far  as  they  are  settling  their  own  con- 
troversy, cannot  be  relied  upon  to  present  all  facts  upon  which  a de- 
cision should  be  based.  Courts  are  clear  in  the  opinion  that  a statute 
should  not  be  declared  unconstitutional  because  of  one  case  of  in- 
dividual hardship,7  if  the  general  conditions  justify  it,  but  a case 
between  private  parties  is  not  calculated  to  bring  forward  information 
regarding  general  conditions  which  may  justify  legislation.  Except  in 
a few  cases,  such  as  Muller  v Oregon8  and  Ritchie  v Wayman,9  where 
unofficial  organizations  have  gathered  information,  the  present  meth- 
ods of  testing  contsitutionality  have  not  proven  adequate  for  the  pre- 
sentation of  information  other  than  that  involved  in  a particular  case. 

As  a matter  of  fact,  the  trial  of  a statute,  if  this  phrase  may  be 
employed,  may  properly  be  urged  not  to  be  a matter  of  mere  private 
interest.  A suggestion  with  respect  to  this  matter  has  been  made  in  a 
recent  book  by  Mr.  Horace  A.  Davis : 

“Every  statute  duly  enacted  should  have  the  force  of  law.  If 
under  its  operation  a party  considers  himself  aggrieved,  he  may  on 
notice  to  the  attorney  general  apply  to  a court  of  general  jurisdiction 
for  review  of  its  constitutionality.  If  he  can  establish  actual  damage, 
the  judge  shall  certify  that  fact  to  the  highest  court  of  the  state  which 
shall  thereupon  set  an  early  date  for  a hearing  on  the  validity  of  the 
statute.  The  state  shall  be  represented  and  notice  shall  be  given  to  the 
members  of  the  legislature  which  passed  the  act,  and  to  the  public. 
All  persons  interested  shall  have  the  right  to  intervene  and  argue, 
and  untrammeled  by  technical  rules  of  evidence,  to  present  the  reasons 
for  the  legislation.  If  the  court  shall,  after  such  hearing,  with  sub- 
stantial unanimity  find  the  statute  unconstitutional,  it  shall  certify  its 
decision  to  the  secretary  of  state,  and  the  statute  shall,  from  that  date 
only  and  to  the  extent  indicated  by  the  decision,  cease  to  be  a law. 
The  aggrieved  plaintiff  shall  then  be  relegated  to  a court  of  claims  to 

7 See  for  example  Ex  Parte  Kair,  28  Nev.  425,  pp.  429-432. 

8 208  U.  S.  412  (1908). 

9 244  111.  509  (1910). 


855 


prove  the  amount  of  his  injury  and  shall  have  judgment  against  the 
state  for  the  damage  he  has  suffered.  All  other  persons  who  have 
meanwhile  been  aggrieved  shall  also  be  compensated  in  like  manner; 
but  no  claim  shall  be  made  after  ten  years  from  the  time  when  the 
statute  takes  effect.”10 

This  suggestion  proceeds  upon  the  assumption,  in  great  part  true, 
that  the  state  has  as  much  interest  in  the  annulment  as  in  the  enact- 
ment of  a statute.  It  has  occasionally  been  suggested  that  there  should 
be  an  extension  of  the  system  of  advisory  opinions  so  that  the  court  may 
pass  in  advance  upon  the  constitutionality  of  proposed  legislation. 
This  proposal  will  be  dealt  with  more  at  length  in  a later  part  of  this 
chapter. 

(5)  The  plan  has  been  adopted  in  a few  cases  of  limiting  the 
declaration  of  unconstitutionality  to  the  highest  court  in  the  state. 
In  Rhode  Island,  for  some  years  a question  of  constitutionality,  when 
raised  in  a lower  court,  has  been  certified  to  the  supreme  court  for 
decision.  In  criminal  cases,  the  question  of  constitutionality,  raised 
in  the  lower  court  is  reserved  until  after  the  completion  of  the  trial 
and  is  certified  to  the  supreme  court  for  decision  if  the  accused  is 
found  guilty.* 11  In  Wyoming  the  lower  court  may  Certify  important 
and  difficult  constitutional  questions  to  the  supreme  court.12  An 
amendment  to  the -Colorado  constitution  adopted  in  1912,  in  connection 
with  the  introduction  of  the  recall  of  judicial  decisions,  prevents  other 
courts  than  the  supreme  court  from  passing  upon  the  constitutionality 
of  statutes. 

(6)  Ex-president  Roosevelt  advocated  in  1912  the  so-called  “recall 
of  judicial  decisions”,  and  in  that  year  a provision  for  the  recall  of  ju- 
dicial decisions  was  inserted  into  the  constitution  of  Colorado.  The  re- 
call of  judicial  decisions  would  by  popular  vote  establish  for  the  future 
the  constitutionality  of  a state  law  which  had  been  declared  invalid  by 
the  court,  and  would  in  effect  be  a constitutional  amendment  altering 
the  interpretation  placed  upon  the  constitutional  provision. 

Under  the  Colorado  constitutional  provision  of  1912,  no  court  ex- 
cept the  supreme  court  may  declare  unconstitutional  a law,  or  a char- 
ter provision  adopted  by  a city.  A decision  that  a law  is  unconstitu- 
tional does  not  become  effective  until  after  sixty  days.  “Within  said 
sixty  days  a referendum  petition  signed  by  not  less  than  five  per  cent 
of  the  qualified  voters  . . . may  bequest  that  such  law  be  sub- 

mitted to  the  people  of  this  state  for  adoption  or  rejection 
All  such  laws  or  parts  thereof  submitted  as  herein  provided  when  ap- 
proved by  a majority  of  the  votes  cast  thereon  at  such  election  shall  be 
and  become  the  law  of  this  state  notwithstanding  the  decision  of  the 
supreme  court.  . . .”  A decision  of  the  supreme  court  holding 

unconstitutional  a provision  of  a municipal  home  rule  charter  may  in 
a similar  manner  be  recalled  by  the  voters  of  the  city.  Under  this 
plan,  the  voters  of  a city  are  made  final  interpreters  of  the  state  con- 
stitution within  the  limits  of  such  city. 

10  Horace  A.  Davis,  The  Judicial  Veto,  33. 

11  Rhode  Island  General  Laws  1909  p.  1049  (Chapter  298,  Secs.  1-3). 

12  Wyoming  Compiled  Statutes,  1910,  Sec.  5136.  Burton  v Coal  Co.,  18 
Wyo.  362  (1909). 


856 


The  process  of  state  constitutional  amendment  has  often  been  ap- 
plied for  the  purpose  of  either  removing  specific  constitutional  pro- 
visions that  have  ceased  to  be  desirable  or  of  altering  the  interpreta- 
tion given  by  the  courts  to  a broad  and  indefinite  constitutional  provi- 
sion. What  is  done  by  a constitutional  change  in  the  latter  case,  is, 
of  course,  to  establish  in  the  constitution  a power  which  has  by  judi- 
cial interpretation  been  denied,  and  to  overcome  for  the  future  the  re- 
sult of  such  a decision.  The  drainage  amendment  in  this  state  in  1878 
was  adopted  for  the  express  purpose  of  meeting  a difficulty  raised  by 
a judicial  interpretation  of  the  existing  constitutional  provision. 

Provided  the  method  of  amending  a state  constitution  is  relatively 
easy,  the  people  of  a state  have  the  privilege  if  they  desire,  of  adopting 
into  their  constitution  a policy  different  from  that  declared  by  the  high- 
est court  to  be  established  by  existing  constitutional  provisions,  and  this 
may  be  called  either  an  overruling  of  the  state  court  or  the  establish- 
ing of  a different  constitutional  policy.  Amendments  altering  state 
constitutional  provisions,  as  judicially  construed,  have  not  been  infre- 
quent. Thus  the  people  of  Colorado  in  1902  inserted  into  their  con- 
stitution a provision  fixing  an  eight  hour  day  in  mines  and  smelters, 
thereby  establishing  a different  policy  from  that  of  a decision  of  the 
supreme  court.  So  the  people  of  New  York  in  1913  overcame  the  re- 
sult of  the  New  York  court  of  appeals’  decision,  insofar  as  it  declared 
compulsory  workmen’s  compensation  to  be  a violation  of  the  state  con- 
stitution. In  a number  of  other  cases,  constitutional  amendments  have 
been  adopted  for  the  express  purpose  of  establishing  in  the  constitu- 
tion a policy  previously  declared  by  the  highest  courts  to  be  violative 
of  due  process  of  law. 

The  proposed  recall  of  judicial  decisions  was  at  first  thought  to 
present  an  easier  method  of  passing  upon  constitutional  issues  raised 
by  judicial  decisions,  but  there  appear  to  be  no  advantages  of  the  plan 
as  compared  with  that  of  specific  amendment  to  the  constitution. 

It  was  urged  that  the  recall  of  decisions  would  be  more  adaptable 
than  the  method  of  amending  the  state  constitution.  If,  for  example,  a 
workmen’s  compensation  law  was  held  unconstitutional,  it  was  said 
that  what  the  people  desire  to  do  is  to  vote  whether  that  particular  law 
shall  be  brought  back  into  force ; and  not  to  vote  on  a constitutional 
amendment  authorizing  the  legislature  to  enact  compensation  laws  in 
general,  thus  permitting  the  passage  again  of  the  law  held  unconstitu- 
tional or  the  passage  of  a law  of  a different  character  from  the  one  held 
unconstitutional.  The  people,  it  is  said,  want  the  law  which  has  just 
been  declared  unconstitutional,  and  by  the  recall  of  the  decision  the 
constitutional  bars  are  to  be  let  down  just  far  enough  to  permit  that 
particular  law  to  get  over. 

Yet,  if  a policy  is  desired  different  from  that  laid  down  by  the 
highest  state  court,  the  thing  that  is  probably  desired  is  the  possibility 
of  dealing  with  a general  problem  rather  than  that  of  keeping  a parti- 
cular law  in  force.  Important  laws  declared  unconstitutional  under 
broad  constitutional  guarantees  usually  relate  to  legislation  which  is 
more  or  less  in  a state  of  experiment:  Let  us  suppose  that  a work- 

men’s compensation  law  were  passed  by  a state  legislature  and  then 


857 


held  unconstitutional  by  the  highest  state  court,  as  was  the  case  in  New 
York.  The  decision  of  the  court  is  recalled.  That  is,  the  particular 
law  in  question  is  no  longer  to  be  open  to  state  constitutional  objection. 
The  law  comes  into  force  and  some  of  its  provisions  work  badly.  In 
order  to  remove  these  undesirable  features,  the  next  legislature  amends 
the  measure  in  some  important  respect.  Now,  the  popular  vote  on  the 
original  measure  has  said  that  the  particular  measure  of  workmen’s 
compensation,  and  that  measure  only,  should  be  relieved  from  state 
constitutional  provisions,  as  interpreted  by  the  state  court ; and  the 
court  would,  if  it  accepts  this  popular  interpretation  of  the  constitu- 
tion, now  probably  hold  the  amended  compensation  law  unconstitu- 
tional, and  matters  are  back  at  the  point  from  which  they  started.  The 
proposed  recall  of  judicial  decisions  is  less  adaptable  and  more  cumber- 
some than  are  the  present  methods  of  amending  constitutions  in  most 
of  the  states.  The  Colorado  provision  adopted  in  1912  has  not  been 
used,  and  is  hardly  likely  to  be  used. 

Of  course,  it  should  be  borne  in  mind  that  all  that  could  be  ac- 
complished by  a recall  of  judicial  decisions  or  by  any  other  method  of 
overcoming  or  of  preventing  a judicial  annulment  of  a state  law  is 
that  of  saying  that  the  state  law  is  not  subject  to  state  constitutional 
objections.  Whatever  plan  the  state  may  adopt  with  respect  to  any 
such  matters  as  are  here  under  consideration  will,  of  course,  leave 
legislation  subject  to  the  broad  guarantees  in  the  federal  constitution 
against  state  action.  This  matter  is  further  commented  upon  in  para- 
graph 3 above,  where  the  subject  of  duplicate  limitations  is  discussed. 

(7)  Ohio  and  North  Dakota  have  adopted  a plan  by  which  an  ex- 
traordinary majority  of  the  supreme  court  is  required  to  declare  a 
law  unconstitutional. 

The  Ohio  Amendment  of  1912  provides  that  “no  law  shall  be  held 
unconstitutional  and  void  by  the  supreme  court  without  the  concur- 
rence of  at  least  all  but  one  of  the  judges,  except  in  the  affirmance  of 
the  judgment  of  the  court  of  appeals  declaring  a law  unconstitutional 
and  void”.  The  courts  of  appeals  in  Ohio  are  composed  of  three 
judges,  and  may  not  reverse  the  action  of  lower  courts  of  record  ex- 
cept by  majority  action.  If  a plan  of  this  sort  is  to  be  adopted,  the 
Ohio  plan  seems  pretty  clearly  unwise.  This  plan  really  places  upon 
two  out  of  three  judges  in  an  inferior  appellate  court  the  power  to  de- 
clare laws  unconstitutional  subject  to  a majority  support  by  the  su- 
preme court,  and  might  well  have  the  effect  of  giving  greater  authority 
to  the  decisions  of  the  lower  court.  A lower  court,  if  there  were  doubt, 
would  probably  resolve  it  against  the  statute  and  so  leave  the  supreme 
court  authority  to  declare  the  statute  unconstitutional  by  majority 
action. 

In  the  six  years  following  1912,  the  supreme  court  of  Ohio  seems 
to  have  been  almost  as  active  in  declaring  laws  unconstitutional  as  in 
the  six  years  preceding  that  year.  There  have  been  only  one  or  two 
cases  in  which  the  amendment  would  have  had  any  effect,  because  in 
practically  all  of  these  cases  there  was  not  more  than  one  dissent.  There 
has  been  one  case  at  least13  in  which  the  court  declared  a law  constitu- 


13  98  Ohio  State  446  (1918). 


858 


tional  although  four  of  the  seven  judges  regarded  it  as  unconstitu- 
tional, but  there  have  been  no  other  such  cases.  There  seems  some 
basis  for  the  view  that  the  court  makes  an  effort  to  come  to  a unani- 
mous opinion  if  possible  upon  constitutional  matters,  and  it  may  be 
that  if  there  is  a clear  majority  in  favor  of  such  a view  the  court  would 
agree  to  have  not  more  than  one  dissent  recorded.  The  Ohio  plan  has 
another  difficulty  in  that  one  court  of  appeals  may  declare  a law  con- 
stitutional and  another  court  of  appeals  declare  the  same  law  uncon- 
stitutional. Under  the  Ohio  provision,  it  would  be  possible  for  the 
supreme  court  to  hold  the  statute  void  in  affirming  the  judgment  of 
one  court  of  appeals,  but  without  authority  to  take  the  same  view  as 
to  the  action  of  another  court  of  appeals.  Probably,  however,  if  such 
a case  occurred,  the  decision  that  the  act  was  unconstitutional,  in  af- 
firming the  judgment  of  one  lower  court,  would  be  regarded  as  bind- 
ing upon  the  state  as  a whole. 

A proposal  submitted  to  the  people  of  Minnesota  in  1914:,  but  re- 
jected, provided  that  “no  statute  shall  be  declared  unconstitutional 
unless  five  (out  of  seven)  members  of  the  court  shall  concur  in  the 
decision.”  The  state  of  North  Dakota  in  1918  adopted  a constitu- 
tional provision  that  “in  no  case  shall  any  legislative  enactment  or 
law  of  the  state  of  North  Dakota  be  declared  unconstitutional  unless 
at  least  four  of-  the  judges  shall  so  decide.”  The  North  Dakota  su- 
preme court  is  composed  of  five  judges.  If  a plan  of  this  sort  is  to  be 
adopted,  the  North  Dakota  and  Minnesota  provisions  seem  more 
satisfactory  than  that  adopted  in  Ohio,  although  under  the  amendment 
adopted  in  North  Dakota  the  question  may  present  itself  as  to 
whether  the  supreme  court  is  declaring  a law  unconstitutional  if  it 
affirms  the  judgment  of  a lower  court  holding  a law  invalid.  The 
North  Dakota  constitutional  provision  has  been  in  force  for  too  short 
a time  for  any  comment  to  be  made  upon  its  effect. 

The  platform  of  the  labor  party  in  this  state  favors  a constitutional 
provision  that  no  law  shall  be  declared  unconstitutional  except  by  the 
unanimous  action  of  the  supreme  court.  With  respect  to  this  sugges- 
tion and  also  with  respect  to  the  suggestion  for  the  requirement  of 
an  extraordinary  majority  of  the  court  to  declare  laws  unconstitu- 
tional, some  analysis  should  be  made  of  decisions  in  this  state  de- 
claring laws  unconstitutional.  Two  hundred  and  eight  decisions  of 
the  supreme  court  of  Illinois  declaring  laws  unconstitutional  under 
the  constitution  of  1870  have  been  analyzed.  In  these  cases  there  were 
53  dissents,  and  of  these  26  were  dissents  without  opinions.  In  20 
cases  there  was  one  dissent ; in  18  cases  there  were  two  dissents ; and  in 
15  cases  there  were  three  dissents.  If  the  concurrence  of  all  but  one  of 
the  members  of  the  supreme  court  had  been  required  to  declare  laws 
unconstitutional,  this  would  have  meant  for  the  period  since  1870 
that  33  out  of  208  laws  might  not  have  been  declared  unconstitu- 
tional. This,  of  course,  is  based  on  the  assumption  that 
the  judges  would  have  taken  the  same  view  in  the  face  of  such  a 
constitutional  restriction  that  they  took  in  the  absence  of  such  a re- 
striction. It  should  be  borne  in  mind  that  the  judges  who  may  desire 
to  dissent  in  one  case  may  feel  that  in  other  cases  there  should  be  a 


859 


illative  degree  of  ease  in  declaring  that  a statute  is  invalid;  and 
that  they  might  on  that  account  waive  their  opposition  in  one  case 
in  order  to  aid  in  the  establishment  of  a practical  rule,  which  would 
destroy  the  effect  of  a constitutional  provision  limiting  the  court. 

The  chief  objection  to  the  power  of  the  courts  to  declare  laws 
unconstitutional  has  reference  to  the  use  of  broad  constitutional  guar- 
antees as  against  social  and  industrial  legislation.  A list  is  here  given 
of  the  more  important  cases  in  which  laws  of  this  character  have  been 
declared  unconstitutional  by  the  supreme  court  of  Illinois : 

Ramsey  v People,  142  111.  380  (1892) 

Frorer  v People,  141  111.  171  (1892) 

Braceville  Coal  Co.  v People,  147  111.  66  (1893) 

Ritchie  v People,  155  111.  98  (1895) 

Harding  v People,  160  111.  459  (1896) 

Ruhstrat  v People,  185  111.  133  (1900) 

Gillespie  v People,  188  111.  176  (1900) 

People  ex  rel.  Akin  v Butler  Street  Foundry  Co.,  201  111.  236 
(1903) 

Matthews  v People,  202  111.  389  (1903) 

Kellyville  Coal  Co.  v Harrier,  207  111.  624  (1904) 

Starne  v People,  222  111.  189  (1906) 

Massie  v Cessna,  239  111.  352  (1909) 

Josma  v Western  Steel  Car  & Foundry  Co.,  249  111.  508  (1911) 
People  v Schenck,  257  111.  384  (1913) 

Of  these  fourteen  cases,  there  were  no  dissents  in  twelve.  There 
was  one  dissent  in  the  case  of  Starne  v People,  and  there  two  dissents 
in  the  case  of  Matthews  v People.  The  Starne  case  may 
be  open  to  criticism,  but  perhaps  its  chief  effect  was  not  to  defeat  a 
particular  type  of  legislation  but  to  make  necessary  a bad  form  of 
draftsmanship  in  subsequent  legislation  enacted  to  accomplish  the 
purpose  sought  by  the  statute  there  involved. 


Comments  upon  proposals.  The  plans  stated  above  proceed 
upon  the  assumption  that  the  power  to  declare  laws  unconstitutional 
will  remain,  and  it  seems  that  this  assumption  is  one  which  must  be 
made  at  the  present  time.  Some  of  these  proposals  seek  to  meet  con- 
ditions which  are  incidental  to  the  power  of  declaring  laws  uncon- 
stitutional, and  to  make  that  power  to  some  extent  more  effective. 
Others  seek  definitely  to  limit  the  power,  and  to  restrict  the  authority 
of  the  court  in  passing  upon  the  validity  of  legislation.  The  proposal 
has  been  made,  of  course,  that  the  authority  of  the  courts  to  declare 
laws  unconstitutional  should  be  abolished,  and  such  a proposal,  to- 
gether with  a good  deal  of  useful  information,  will  be  found  in  a re- 
port recently  presented  to  the  American  Federation  of  Labor.14 

14  Study  and  Report  for  American  Federation  of  Labor  upon  Judicial  Con- 
trol over  Legislatures  as  to  Constitutional  Questions,  by  Jackson  H.  Ralston, 
Washington,  1919.  Proposals  to  require  an  extraordinary  majority  to  declare  a 
law  unconstitutional  and  to  leave  the  scope  of  the  state’s  police  power  to  the 
final  determination  of  the  legislature  were  discussed  and  rejected  by  the  Massa- 
chusetts constitutional  convention  in  1918.  Debates  I,  453,  851. 


860 


With  respect  to  the  problem  here  under  discussion,  it  should  be 
suggested  that  some  person  or  body  must  finally  interpret  the  constitu- 
tion. The  proposal  made  by  Mr.  Ralston  would  take  away  from  state 
courts  the  right  to  declare  invalid  acts  of  state  legislatures  and  from 
the  federal  courts  the  right  to  declare  invalid  acts  of  Congress,  leaving 
to  the  courts,  subject  to  final  review  by  the  United  States  supreme 
court,  a power  to  declare  state  legislative  acts  invalid  as  in  conflict 
with  the  federal  constitution,  laws  or  treaties,  requiring  that  courts 
in  such  cases  should  hold  statutes  invalid  only  upon  the  concurrence 
of  three-fourths  of  their  members.  For  the  proper  working  of  the 
federal  system,  it  would,  of  course,  be  necessary  that  some  body  pass 
upon  the  relationship  between  federal  and  state  powers,  and  probably 
those  opposed  to  the  general  power  of  the  courts  would  agree  that 
the  United  States  supreme  court  has,  -on  the  whole,  performed  ef- 
ficiently the  task  of  preserving  the  balance  between  the  national  and 
the  state  governments  under  the  constitution  of  the  United  States. 

Aside  from  the  construction  of  federal  powers  as  against  the 
states,  Mr.  Ralston’s  proposal  would  leave  to  congress  the  final  de- 
termination of  its  own  powers  and  to  the  state  legislatures  the  final 
determination  of  their  powers,  assimilating  these  legislatures  to  the 
legislatures  of  most  of  the  other  countries  in  the  world.15  However, 
in  connection  with  such  a proposal,  it  must  be  borne  in  mind  that  this 
power  has  been  a rather  essential  part  of  the  American  governmental 
system  for  nearly  150  years. 

It  is  assumed  that  in  this  country  the  courts  will  remain  the 
bodies  to  interpret  finally  the  meaning  of  constitutional  texts,  even 
though  some  limitation  may  be  placed  upon  them  in  the  performance 
of  this  function.  The  problem  of  constitutional  construction  involves 
much  the  same  type  of  function  as  that  of  statutory  construction,  and 
constructions  must  be  given  if  language  is  vague  or  uncertain,  as 
constitutional  language  is  sometime  apt  to  be,  although  perhaps  it  may 
be  said  that  many  questions  of  construction  arise  not  because  of  any 
indefiniteness  in  language,  but  because  changed  conditions  have 
brought  up  problems  of  which  the  framers  of  the  constitution  could 
not  have!  thought.  A complex  constitution  makes  necessary  the 
prompt  settlement  if  possible  of  numerous  technical  questions  of  con- 
struction, and  when  such  questions  are  once  settled  a constitution  is 


15  In  Australia,  Argentina,  Greece,  Norway  and  Roumania,  the  courts  en- 
force constitutional  limitations  in  much  the  same  manner  as  they  do  in  the 
United  States,  although  cases  arise  much  less  frequently  than  they  do  with 
us.  In  Switzerland,  the  federal  court  enforces  against  cantonal  legislation 
the  guarantees  in  both  cantonal  and  federal  constitutions.  For  Canada  a 
judicial  control  exists  in  order  to  keep  the  dominion  and  provincial  legisla- 
tures within  the  limits  of  the  British  North  America  Act.  In  a number  of 
federal  governments  (Brazil,  Mexico,  and  Switzerland)  there  exists  impliedly 
or  expresslv  a judicial  power  to  disregard  state  laws  which  conflict  with  the 
federal  constitution  or  laws,  but  this  may  be  regarded  more  appropriately  as 
a control  of  superior  over  inferior  legislation,  rather  than  a true  judicial  con- 
trol over  legislation.  The  constitutions  of  Portugal,  Nicaragua,  Honduras, 
Cuba,  Haiti  and  Venezuela  expressly  grant  to  the  courts  power  to  disregard 
laws  conflicting  with  the  constitutions,  and  in  several  other  Batin-American 
constitutions  there  are  provisions  which  imply  a similar  power.  Too  much 
reliance,  however,  must  not  be  placed  upon  the  declarations  in  some  of  these 
constitutions.  To  complete  the  list  it  may  be  added  that  in  Liberia  the  courts 
exercise  such  a power  and  that  a judicial  power  over  legislation  was  asserted 
in  the  Transvaal  in  1896. 


861 


likely  to  operate  more  effectively  than  before.  Here  arises  one  of  the 
most  serious  problems  in  connection  with  any  proposal  for  the  recall 
of  judicial  decisions  or  for  the  determination  of  constitutional  ques- 
tions only  by  an  extraordinary  majority  of  the  court. 

It  is  well  known  that  practical  issues  as  to  the  wisdom  of  particu- 
lar interpretations  influence  mosttf  our  courts,  and  judges  would  not 
be  human  were  this  not  true.  Requiring  a certain  proportion  of  judges 
to  declare  a law  unconstitutional  may  well  lead  to  a liberal  interpreta- 
tion in  one  case,  which  makes  a strong  popular  or  sentimental  appeal, 
as  against  a strict  interpretation  in  another  case.  Of  course,  it  must 
be  admitted  that  courts  do  not  now  always  take  the  same  attitude  in 
applying  a constitutional  provision  to  different  types  of  cases,  but  a re- 
quirement of  this  sort  may  accentuate  such  an  attitude. 

Not  only  this,  but  an  element  of  greater  uncertainty  will  be  added 
when  it  is  known  that  a majority  of  a court  favored  a particular  inter- 
pretation, but  was  prevented  from  adopting  that  interpretation  by  a 
constitutional  provision  of  this  character.  A change  in  judicial  at- 
titude or  a change  in  the  membership  of  a court  would  be  more  likely 
under  such  conditions  to  result  in  a change  of  the.  decisions.  Of 
course,  the  points  just  suggested  may  be  met  by  the  argument  that 
courts  now  frequently  change  their  attitude  upon  constitutional  ques- 
tions, and  that  litt1  . 'T  would  be  added  by  the  adoption 

of  such,?  -ie  greater  uncertainty  , that  the  recall  of  judicial 

decR'  4 ^ may  be  suggested,  howevt*,  more  uncertainty  re- 

rardTnTtlA  ltfwe/e  used\  would  'ead  to  much  ...  ' " propose  / 

f3. th/  te,xt  of  a constitution  than  would  any  other  p.a.  ,, 

Lzl*  w„X“«™"0“k";  ch*T  ™ ■“••f  «* 

certain  as  to  the  status  of  ^ and  1 ^eiybody  m the  community  un- 
matter. 3tUS  °f  the  const‘t«t.onal  rule  about  the  particular 


certain  questions.  This  plan  of  ha  vino-  ft  ^.hJ5hest  state  courts  upon 
opinions  has  been  employed  a great  deal  in  re^T  C0Urt.givue  advisory 
Massachusetts  in  order  to  oht  Jn  „ • reCT  yeafs.In  the  state  of 
legislation  in  advance  of  its  passage^InVnt  °f  proPosed 

such  opinions  are  not  constit'utSy  authored  In^Rhod 

vigorously  pursued,  but  has  now  larp-elv*  jP°Sed  le^slatjon  was  once 
New  Hampshire  the  practice nf  ? 7 dlfPPeared-  > Maine  and 
some  extent,  and  thePpractice  is  S*iC1  °Pm*on.s  ls  employed  to 

Hampshire.  At  first  advisorv  .PparentIy  on  the  increase  in  New 
but  since  as  niere  ad™e, 

weight,  as  if  they  were  judicial  precedents  **  rather  distinCt 


862 


It  is  with  respect  to  the  constitutionality  of  proposed  legislation 
that  advisory  opinions  have  been  most  useful,  but  it  may  be  ques- 
tioned whether  this  usefulness  is  not  diminished  by  the  tendency  to 
regard  such  opinions  as  binding  judicial  precedents.  The  theory  of 
advisory  opinions  was  that  the  judges  are  the  most  competent  legal 
officers  of  the  state;  and  that  their  legal  advice  might  be  approp- 
riately used  in  certain  cases  which  did  not  involve  controversies  be- 
tween private  parties.  Of  course,  in  connection  with  the  giving  of 
advisory  opinions,  if  they  were  authorized  by  constitutional  provision, 
it  would  be  possible  to  provide  also  that  no  opinion  should  be  given 
without  formal  argument,  but  such  opinions  would  in  many  cases 
have  to  be  given  on  short  notice,  and  probably  do  not  involve  as  care- 
ful safeguards  as  does  the  decision  of  a constitutional  issue  in  a case 
between  private  parties;  although,  as  has  already  been  suggested, 
the  decision  of  a controversy  does  not  itself  always  bring  out  all  of  the 
points  at  issue  as  to  the  question  of  constitutionality. 


Courts  on  the  whole  have  been  opposed  to  the  giving  of  advisory 
opinions,  and  in  some  states  whose  constitutions  require  such  opin- 
ions, the  courts  have  attempted  to  limit  rather  narrowly  their  actions 
in  giving  advice.  There  has  on  the  whole  been  no  tendency  to  adopt 
in  other  states  a requirement  for,  

If  the  initiative  andrg^HR^^^^^JH(m|^HfcfcH^^xtended 
use  of  the  advisory  . , T ^Wj^^Hta»ilves 

islatin  Kli^JM(PP^ren<^um  were  t°  be  adopted,  oi 

may  be  suggested.  The  initiative  im 
l^UIPP^^jopular  vote,  and  if  constitutional  defects  exist  in 
proposal  to  be  submitted  to  popular  vote,  there  may  be  wisdom  in  stop- 
ping the  submission  for  this  reason,  because  the  popular  vote  would 
in  such  case  be  merely  a useless  expense.  It  is  for  this  reason  that  a 
proposal  was  once  made  in  Iowa  that  in  adopting  the  initiative  and 
referendum  a plan  at  the  same  time  be  adopted  of  submitting  each 
popularly  initiated  measure  to  the  supreme  court  for  advice  as  to  its 
constitutionality,  before  the  measure  were  submitted  to  the  people. 


The  constitution  of  Illinois  provides  that:  “All  judges  of  courts 

of  record  inferior  to  the  supreme  court  shall  on  or  before  the  first  day 
of  June  of  each  year,  report  in  writing  to  the  judges  of  the  supreme 
court  such  defects  and  omissions  in  the  laws  as  their  experience  may 
suggest ; and  the  judges  of  the  supreme  court  shall  on  or  before  the 
first  day  of  January  of  each  year,  report  in  writing  to  the  governor 
such  defects  and  omissions  in  the  constitution  and  laws  as  they  may 
find  to  exist,  together  with  appropriate  forms  of  bills  to  cure  such  de- 
fects and  omissions  in  the  laws.”  This  provision,  which  was  carried 
over  from  an  earlier  statute  in  Illinois,  has  been  copied  by  several 
states  since  1870.  Little  attention  has  ever  been  given  to  this  provision 
by  the  courts.  In  1909  Governor  Deneen  addressed  a communication 
to  the  judges  of  the  supreme  court,  requesting  the  aid  of  the  court  in 
framing  a valid  primary  election  law.  In  answer  to  the  governor’s  re- 
quest, the  justices  replied  that  the  aid  sought  under  this  provision  of 
the  constitution  could  not  properly  be  given.  Justices  Cartwright  and 
Carter,  in  addition,  submitted  a comprehensive  argument  covering  the 


863 


subject  of  advisory  opinions  and  the  requirement  that  judges  report 
defects  and  omissions  in  the  law.16 

The  reporting  of  defects  in  the  laws  by  judges  proved  of  some 
value  when  required  by  statute  with  respect  to  a proposed  revision 
of  the  statutes  (which  later  became  the  revised  statutes  of  1874)  but 
the  provision  has  been  practically,  if  not  entirely,  useless  since  it 
came  into  the  constitution  of  Illinois.17 

16  243  111.  pp.  9 to  41  (1909). 

17  For  a full  discussion  of  the  subject  of  advisory  opinions,  see  Arthur  R. 
Ellingwood,  Departmental  Cooperation  in  State  Government,  New  York,  Mac- 
Millan, 1918,  Dr.  Ellingwood  thinks  that  the  advisory  opinion  with  respect  to 
the  constitutionality  of  legislation  is  useful  and  should  be  extended. 


X.  CLAIMS  AGAINST  THE  STATE. 


Development  in  Illinois.  No  provision  was  made  in  the  consti- 
tution of  181.8  for  the  adjustment  of  claims  against  the  state.  An  act 
of  March  23,  1819,  provided  that  the  auditor  of  public  accounts  might 
sue  and  be  sued  on  behalf  of  the  state.  When  a judgment  was  ren- 
dered against  the  auditor  of  public  accounts  he  was  to  draw  a warrant 
on  the  treasurer  for  the  amount  of  the  judgment.  This  warrant  was 
to  be  paid  out  of  money  not  otherwise  appropriated.1  This  act  was 
repealed  in  18292  by  an  act  which  provided  that  the  auditor  of  public 
accounts  might  be  sued,  but  that  the  judgment  was  not  to  be  conclu- 
sive upon  ‘the  state  until  examined  by  the  general  assembly.  By  the 
act  of  1829  the  general  assembly  was  to  make  an  appropriation  to  sat- 
isfy a judgment  or  so  much  of  it  as  was  deemed  just.  Suit  against  the 
auditor  of  public  accounts  was  to  be  brought  only  in  the  county  in 
which  the  seat  of  government  was  located,  and  an  appeal  to  the  su- 
preme court  was  expressly  provided  for. 

The  act  of  1829  was  replaced  in  1845  by  another  act  which  was, 
however,  similar  in  general  terms.3  In  1847  an  act  was  passed  provid- 
ing that  all  unliquidated  claims  arising  from  the  canal  should  be  proved 
up  by  witnesses  before  the  state  trustee  of  the  canal,  and  that  all  un- 
liquidated claims  arising  from  the  internal  improvement  system  should 
be  proved  before  the  auditor  of  public  accounts,  and  filed  with  the 
secretary  of  state.4  This  act  requires  persons  having  unliquidated 
claims  against  the  state  from  any  cause  whatever,  to  make  out  vouch- 
ers, and  present  the  claims  together  with  an  affidavit  of  their  correct- 
ness, and  to  file  them  in  the  office  of  the  secretary  of  state.  It  also 
limited  the  time  in  which  claims  could  be  brought  to  two  years. 

The  constitution  of  1848  provided  that  the  general  assembly 
should  direct  by  law  in  what  manner  suits  might  be  brought  against 
the  state.5  The  general  assembly  seems  not  to  have  acted  upon  the 
matter,  however,  and  between  1848  and  1870  the  act  of  1847  was  the 
only  law  in  force,  relating  to  claims  against  the  state. 

The  proposed  constitution  of  1862  contained  a provision  that  suits 
might  be  brought  against  the  state  in  the  circuit  court  of  the  county 
where  the  seat  of  government  was  located,  but  change  of  venue  was 
permitted. 

The  constitution  of  1870  provides  that  the  state  of  Illinois  shall 
never  be  made  a defendant  in  any  court  of  law  or  equity.6  From  the 

1 Illinois  Laws,  1819,  p.  184. 

2 Revised  Laws  of  Illinois,  1829,  p.  171. 

3 Revised  Statutes,  1845,  pp.  394,  464. 

4 Illinois  Laws,  1846,  p.  32. 

5 Constitution  of  1848,  Art.  III.,  Sec.  34. 

6 Constitution  of  1870,  Art.  IV.,  Sec.  26. 


865 


debates  in  the  constitutional  convention  of  1869-70,  it  appears  that  the 
state’s  experience  with  the  internal  improvement  and  canal  bonds  was 
responsible  for  the  adoption  of  this  provision.7  In  1841  the  fund  com- 
missioner of  the  canal  obtained  $261,560  from  Macalister  and  Steb- 
bins.  As  security  he  turned  over  804  bonds  of  $1,000  each.  Shortly 
after  this  transaction  thirty  internal  improvement  bonds  of  $1,000  each 
were  turned  over  to  Macalister  and  Stebbins,  on  which  further  ad- 
vances were  to  be  made.  No  advances  other  than  the  $261,560  were 
ever  made,  but  later  an  order  was  given  to  Macalister  and  Stebbins  for 
41  bonds  of  $1,000  each  which  they  obtained.  Canal  script  to  the 
amount  of  $38,215.44  was  also  received  by  Macalister  and  Stebbins. 
The  final  accounting  showed  that  they  had  received  bonds  and  script 
to  the  value  of  $913,215.44  and  that  they  had  advanced  only  $261,560. 
Upon  failure  of  the  state  to  comply  with  the  terms  of  the  contract, 
Macalister  and  Stebbins  declared  the  bonds  forfeited  and  demanded 
payment  in  full  of  the  $913,215.44.8  In  1847  an  act  was  passed  author- 
izing the  funding  of  the  state  debt  at  par  but  the  Macalister  and 
Stebbins  bonds  were  specially  excluded  from  its  operation.  At  the 
Same  session  an  act  was  passed  authorizing  a settlement  with  Macalister 
and  Stebbins  at  26  cents  on  the  dollar.9  This  offer  was  refused. 

In  1849  another  act  was  passed  authorizing  a settlement  by  repay- 
ing the  money  advanced  with  7 per  cent  interest.10  All  of  the  bonds 
but  114  were  funded  under  this  act.  The  114  had  passed  into  the 
possession  of  other  parties,  and  the  holders  claimed  to  have  purchased 
before  they  had  any  knowledge  that  the  state  refused  to  pay  them  at 
par.  The  holders  of  these  bonds  besieged  the  legislature  for  relief 
until  1865,  when  an  act  was  passed  compelling  the  surrender  of  the 
bonds  under  penalty  of  forfeiture  of  both  interest  and  principal.  The 
amount  allowed  on  each  $1,000  was  $248.13. 

In  the  constitutional  convention  of  1869-70  it  was  contended  that 
these  holders  of  the  bonds  were  not  bona  fide  purchasers,.  but  that  the 
courts  would  be  bound  by  technical  rules  of  Evidence  which  might  have 
allowed  a recovery  of  the  full  face  value  of  the  bonds,11  had  the  mat- 
ter been  one  for  judicial  determination. 

A proposal  of  amendment  permitting  the  general  assembly  to  pro- 
vide for  commissioners  or  arbitrators  to  investigate  and  report  any 
claims  against  the  state,  subject  to  review  of  the  general  assembly,  was 
defeated  in  the  convention  of  1869-70.  It  was  urged  that  this  would 
enable  the  general  assembly  to  shift  responsibility,  and  that  such  com- 
missioners would  be  irresponsible  bodies,  subject  to  political  pressure. 


Interpretation  of  the  constitution  of  1870.  A brief  review  is 
given  below  of  the  decisions  interpreting  the  constitutional  provision 

7 Debates.  Constitutional  Convention  1869-70,  p.  961. 

8 For  history  of  the  Macalister  and  Stebbins  bonds  see:  Davidson  & Stuve’s 

History  of  111.  p.  673;  Ford’s  History  of  111.  p.  210;  Daws,  1846,  p.  163;  Daws, 
1849,  p.  43. 

8 Daws,  1846,  p.  163. 

10  Daws,  1849,  p.  43. 

11  Debates  of  constitutional  convention,  1869-70,  page  961. 


866 


that  “the  State  of  Illinois  shall  never  be  made  defendant  in  any  court 
of  law  or  equity.” 

The  state  cannot  be  made  a party  defendant  in  a proceeding  to 
levy  a special  assessment  to  defray  the  cost  of  constructing  a local  im- 
provement even  though  it  owns  property  that  will  be  benefited  by  the 
improvement.12  It  is  improper  for  the  Attorney  General  to  file  a cross 
petition  in  a condemnation  proceeding  because  a cross  petitioner  in 
such  a proceeding  is  in  effect  a defendant  ;13  and  this  seems  to  be  true 
even  though  the  state  may  be  required  to  pay  the  costs  in  an  abandoned 
condemnation  proceeding  in  which  it  was  the  petitioner.14  But  it  is 
entirely  proper  for  a defendant  in  a suit  in  equity  brought  by  the  state 
to  file  a cross  bill.15 

As  long  as  a state  officer  is  acting  within  the  scope  of  his  author- 
ity, a suit  against  him  is  a suit  against  the  state  and  cannot  be  main- 
tained. Thus,  a suit  cannot  be  maintained  against  the  penitentiary 
commissioners  to  recover  damages  for  breach  of  a contract  to  furnish 
convict  labor,  or  to  compel  performance  thereof.16  Nor  can  a suit  for 
damages  for  personal  injuries  sustained  as  a result  of  the  falling  down 
of  a grandstand  at  the  state  fair  grounds  be  maintained  against  the 
state  board  of  agriculture.17  But  a state  officer  who  attempts  to  tran- 
scend his  authority,  may  be  restrained  by  the  courts.  An  officer  who  at- 
tempts to  enforce  the  collection  of  fees  under  an  improper  interpreta- 
tion of  a statute,18  or  whois  about  to  pay  out  money  under  an  uncon- 
stitutional statute,19  may  be  enjoined  by  the  courts.  A state  officer  who 
attempts  to  deprive  an  individual  of  the  free  enjoyment  of  his  property 
cannot  set  up  as  a defense  to  an  injunction  suit  against  him  the  fact 
that  the  suit  against  him  is  in  effect  a suit  against  the  state,  for  by  his 
actions  in  interfering  with  the  use  of  another’s  property  he  is  tran- 
scending his  authority.20  And  a civil  service  employee  who  has  been 
discharged  without  cause  is  entitled  to  a writ  of  mandamus  to  compel 
the  Auditor  of  Public  Accounts  to  issue  a warrant  for  the  salary  justly 
due  him  during  the  time  that  he  was  illegally  prevented  from  perform- 
ing the  duties  of  his  position.23 


Claims  against  state  in  federal  courts.  The  state  can  not  be 

sued  by  a private  citizen  in  the  federal  courts,  as  the  11th  amendment 
to  the  constitution  of  the  United  States  provides;  “The  judicial  power 
of  the  United  States  shall  not  be  construed  to  extend 
to  any  suit  in  law  or  equity,  commenced  or  posecuted  against  one  of 


« In  re  City  of  Mt.  Vernon.  147  111.  359  (1893);  Report  of  Attorney  General, 
1900,  p.  191;  see  City  of  Chicago  v City  of  Chicago,  207  III.  37  (1904). 

13  People  v Sanitary  District  of  Chicago,  210  111.  171  (1904). 

14  Deneen  v Unverzagt,  225  111.  378  (1907). 

15  Brundage  v Knox,  279  111.  450  (1917). 

16  People  v Dulaney,  96  111.  503  (1880). 

17  Minear  v State  Board  of  Agriculture,  259  111.  549  (1913);  but  see  State 
Board  of  Agriculture  v Brady,  266  111.  592  (1915). 

18  G.  A.  Insurance  Co.  v Van  Cleave,  191  111.  410  (1901). 

19  Burke  v Snively,  208  111.  328  (1904);  Fergus  v Russell.  270  111.  304  (1915); 
See  for  the  statutory  regulations  of  this  matter.  Laws.  1917,  p.  534. 

20Joos  v Illinois  National  Guard.  257  111.  138  (1913). 

21  People  v Stevenson,  272  111.  215  (1916). 


8G7 


the  United  States  by  citizens  of  another  state,  or  by  citizens  or  sub- 
jects of  any  foreign  state.”  This  amendment  does  not  in  terms  forbid 
suits  against  a state  by  its  own  citizens,  but  the  United  States  su- 
preme court  has  held  such  suits  to  be  beyond  the  jurisdiction  of  the 
courts.22 


Claims  against  the  state  under  the  constitution  of  1870.  In 

1877  an  act  was  passed  creating  the  commission  of  claims.  This  com- 
mission was  composed  of  one  judge  of  the  supreme  court  and  two  cir- 
cuit judges.  The  act  declared  it  to  be  the  duty  of  this  commission  to 
“hear  and  determine  all  unadjusted  claims  of  all  persons  against  the 
state.”23  Awards  were  to  be  filed  with  the  Auditor  of  Public  Ac- 
counts, and  a statement  of  awards  was  to  be  submitted  to  the  General 
Assembly. 

In  18  8 9 24  the  act  of  1877  was  amended.  The  governor  was  given 
power  to  appoint  three  commissioners,  who  were  to  compose  the  com- 
mission of  claims  instead  of  the  supreme  and  circuit  judges.  By  this 
law  not  more  than  two  commissioners  could  be  of  the  same  party. 
They  were  given  power  to  hear  and  determine  all  unadjusted  claims 
founded  upon  any  law  of  the  state,  or  any  contract  express  or  im- 
plied and  all  claims  that  may  be  referred  by  either  house ; claims  for 
taking  and  damaging  property  by  the  state,  and  unadjusted  claims 
against  state  institutions. 

The  act  of  1877  as  amended  by  the  act  of  1889  was  replaced  by 
an  act  of  1903.  The  act  of  1903  created  an  organization 
which,  although  not  a court  in  the  proper  sense,  was  called  the 
court  of  claims.  This  body  was  composed  of  three  persons  appointed 
in  the  same  manner  as  the  commissioners  under  the  amendment  of 
1889,  and  its  authority  was  made  more  specific  than  by  eariler  legis- 
lation. 

The  present  court  of  claims  was  created  in  1917, 25  the  previous 
court  being  abolished  in  the  same  year.  Its  organization  is  substan- 
tially the  same  as  the  organization  of  the  former  court  of  claims,  ex- 
cept that  the  secretary  of  state  instead  of  the  auditor  of  public  accounts 
is  the  ex-officio  secretary.  The  jurisdiction  of  the  court  of  claims 
was  extended  by  this  act  to  “all  claims  and  demands,  legal  and  equit- 
able, liquidated  and  unliquidated,  ex  contractu  and  ex  delicto,  which 
the  state  as  a sovereign  commonwealth  should,  in  equity  and  good 
conscience,  discharge  and  pay.”  It  is  also  given  power  to  hear  and 
determine  the  liability  of  the  state  for  accidental  injuries  or  death  suf- 
fered in  the  course  of  employment  by  any  employe  of  the  state.  The 
determination  in  this  class  of  cases  is  to  be  made  in  accordance  with 
the  “Workmen’s  Compensation  Act.”  This  court  also  has  power  to 
hear  and  give  its  opinion  on  any  controverted  question  of  claims  or 

22  Hans  v Louisiana,  134  U.  S.  1 (1890).  Upon  this  whole  matter  see  Singe- 
wald.  Suability  of  States,  Johns  Hopkins  University  Studies,  Vol.  35,  (1915). 

23  Laws,  1877,  p.  64. 

21  Laws,  1889,  p.  69. 

25  Hurd’s  Revised  Statutes,  Chap.  37,  Secs.  331-341  c 


868 


demand  referred  to  it  by  any  officer,  department,  institution,  board, 
arm,  or  agency  of  the  state  government  and  to  report  its  findings  and 
conclusions  to  the  authority  by  which  it  was  transmitted  for  its  guid- 
ance and  action.  The  attorney  general  represents  the  interests  of  the 
state  in  all  matters  before  the  court  of  claims  under  the  legislation  of 
1917,  as  he  has  done  under  all  legislation  enacted  since  1870. 

The  act  of  1917,  expressly  provides  that;  “No  appropriation  shall 
hereafter  be  made  by  the  general  assembly  to  pay  any  claim  or  demand, 
over  which  the  court  of  claims  is  herein  given  jurisdiction,  unless  an 
award  therefor  shall  have  been  made  by  the  court  of  claims.”  The 
court  of  claims  has  merely  advisory  power,  and  the  payment  of  its 
awards  depends  upon  action  by  the  general  assembly.  The  constitution 
provides  that  “the  general  assembly  shall  make  no  appropriation  of 
money  out  of  the  treasury  in  any  private  law.”  The  supreme  court 
has  held  that  this  does  forbid  appropriations  to  pay  just  claims 
of  private  individuals.  With  respect  to  the  court  of  claims,  the  su- 
preme court  said : “The  bill  alleges  that  the  court  of  claims  by  the 
act  of  1903  creating  it,  was  given  exclusive  jurisdiction  over  all  claims 
against  the  state,  and  that  the  claims  for  the  payment  of  which  the 
appropriation  bills  attacked  were  passed  failed  to  receive  the  approval 
of  said  court,  and  the  bills  making  the  appropriation  were  therefore 
unconstitutional  and  void.  The  court  of  claims  is  a statutory  body 
not  provided  for  in  the  constitution,  and  its  action  can  have  no  effect 
upon  the  power  of  the  legislature  to  pay  claims  against  the  state. 
If  the  legislature  has  no  such  power  in  any  case,  favorable  action  by 
the  court  of  claims  upon  the  claims  would  not  give  the  legislature 
power  to  pay  such  claims  by  making  appropriations  therefor.  If  it 
has  the  power  to  pay  claims  it  cannot  be  deprived  of  it  by  unfavorable 
action  on  such  claims  by  the  court  of  claims.  The  power  or  lack  of 
power  to  appropriate  money  to  pay  claims  upon  the  constitution  and 
not  upon  the  action  of  the  court  of  claims.  There  is  no  provision  in 
that  instrument  against  the  payment  of  a claim  which  the  state  is  liable 
for  and  ought  to  pay,  and  as  the  state  cannot  be  sued  either  at  law 
or  in  equity,  the  power  to  make  such  payment  must  be  in  the  legisla- 
■ ture.”26 

The  act  of  1917,  (passed  after  the  case  just  cited)  in  terms  for- 
bids appropriations  to  pay  claims  over  which  the  court  of  claims  has 
jurisdiction  unless  an  award  has  been  made  by  the  court  of  claims,  but 
this  limitation  is  apparently  invalid  and  has  been  disregarded  by  . the 
general  assembly. 


Work  of  the  court  of  claims.  Prior  to  1917  the  court  of  claims 
had  power  to  make  awards  only  in  those  cases  in  which  the  party 
had  a legal  claim  against  the  state.  It  was  not  discretionary  with  the 
court  to  make  an  award  in  favor  of  the  claimant  regardless  of  whether 
or  not  he  had  a legal  claim.27  It  had  no  power  to  make  awards  for 

26  Fergus  v Russell,  277  111.  20  (1917). 

27  Schmidt  v State,  1 Court  of  Cl.  rep.  76  (1890). 


869 


damages  caused  by  negligence  of  the  agents  of  the  state,  when  per- 
forming a governmental  function,  as  at  common  law  the  state  is  not 
liable  for  negligence  in  such  cases.28  Where  the  state  is  conducting  a 
business  enterprise  for  profit  it  is  liable  for  torts,  so  the  court  of  claims 
held  that  it  had  power  to  make  awards  for  damages  caused  by  negli- 
gence of  the  Illinois  and  Michigan  Canal  employes.29 

Before  1917  few  claims  were  filed  in  the  court  of  claims.  The 
first  volume  of  the  court  of  claims  reports,  containing  cases  from  1889 
to  1905,  reports  only  125  cases ; and  the  second  volume,  containing 
cases  decided  from  1905  to  March  17,  1915,  reports  143  cases.  The 
jurisdiction  of  the  court  to  pass  upon  claims  was  limited,  and  broader 
relief  might  be  granted  by  the  general  assembly.  Any  claim  could  be 
brought  directly  to  the  general  assembly,  even  though  the  court  of 
claims  had  jurisdiction  to  hear  it;  and  after  an  award  by  the  court 
of  claims,  payment  could  not  be  made  except  by  appropriation  of  the 
general  assembly,  so  that  no  delay  was  avoided  by  taking  the  matter 
to  the  court  of  claims.  It  was  natural,  therefore,  that  claims  should 
be  presented  directly  to  the  general  assembly  rather  than  to  the  court 
of  claims.  The  situation  was  unsatisfactory,  and  a definite  effort  to 
remedy  it  was  made  in  1917.  In  the  legislative  session  of  that  year, 
the  governor  vetoed  twenty-one  appropriations  for  private  claims,  be- 
cause the  claims  were  not  first  presented  to  the  court  of  claims,  al- 
though it  had  power  to  act  on  them  under  the  then  existing  law.  It  is 
not  possible  constitutionally  to  make  the  determination  of  the  court  of 
claims  conclusive,  for  this  would  make  the  state  subject  to  suit.  But 
the  act  of  1917  sought  to  meet  certain  other  difficulties  presented  by 
earlier  legislation.  It  extends  the  power  of  the  court  of  claims  “to  hear 
and  determine  all  claims  and  demands,  legal  and  equitable,  liquidated 
and  unliquidated,  ex  contractu  and  ex  delicto,  which  the  state,  as  a 
sovereign  commonwealth  should,  in  equity  and  good  conscience,  dis- 
charge and  pay”.  From  this  it  would  appear  that  the  court  of  claims 
may  make  an  award  for  a claim  not  founded  on  a legal  liability. 
This  act  also  attempts  to  prohibit  the  general  assembly  from  making 
any  appropriation  for  the  payment  of  any  claim  or  demand,  over  which 
the  court  of  claims  has  jurisdiction,  unless  an  award  therefor  has  been 
made  by  the  court  of  claims.  Although  the  general  assembly  probably 
cannot,  without  constitutional  change,  be  deprived  of  its  power  to 
make  such  appropriations,  the  policy  of  having  all  claims  determined 
by  this  court  has  been  protected  to  some  extent  by  the  veto  of  approp- 
riations. 

The  legislation  of  1917  has  caused  an  increase  in  the  business  of 
the  court  of  claims.  In  1917,  bills  were  passed  to  pay  75  claims  which 
had  been  allowed  by  the  court  of  claims,  and  of  these  13  were  vetoed 
for  technical  reasons.  In  1919  appropriations  were  made  to  pay  449 
claims  which  had  been  allowed  by  the  court  of  claims. 

During  the  1919  session  of  the  general  assembly  appropriations 
were  made  to  pay  7 of  the  claims  for  which  the  appropriation  had 
been  vetoed  at  the  1917  session  because  they  had  not  been  passed  upon 

28  Henke  v State,  2 Court  of  Cl.  rep.  11  (1906). 

“Holmes  v State,  1 Court  of  Cl.  rep.  324  (1905). 


870 


by  the  court  of  claims.  Two  of  the  claimants  had  obtained  awards 
from  the  court  of  claims.  Five  claimants  had  not  obtained  awards 
from  the  court  of  claims,  but  the  appropriation  bill  for  one  of  these 
claims  recites  that  the  claim  could  not  be  adjusted  by  the  court  of 
claims  as  the  statute  of  limitations  had  expired,  while  another  recites 
that  an  award  had  been  obtained  from  the  industrial  board. 

In  1919,  appropriations  were  made  to  pay  38  claims  for  which 
no  awards  had  been  made  by  the  court  of  claims.  Nineteen  of  these 
claims  were  for  services  rendered,  supplies  furnished,  traveling  ex- 
penses or  per  diem  earned ; 3 were  for  refunds  for  money  expended  on 
behalf  of  the  state;  3 for  a refund  of  inheritance  tax;  4 for  a refund 
of  corporation  fee;  2 for  damages  for  death  of  an  employe  of  the 
state;  5 for  injuries  to  employes  of  the  state;  1 for  death  of  a person 
not  an  employe  of  the  state;  1 for  damages  to  property  caused  by  a 
quarantine.  An  award  had  been  made  for  one  of  these  claims  by  the 
industrial  board.  The  appropriation  bill  for  one  of  these  claims  re- 
cites that  the  claim  could  not  be  adjusted  by  the  court  of  claims  as 
the  statute  of  limitations  had  expired.  One  other  bill  recites  that  the 
industrial  board  and  the  court  of  claims  had  held  that  the  case  did 
not  come  within  the  provisions  of  the  workmen’s  compensation  act. 

Appropriations  for  three  claims  were  vetoed  at  the  1919  session 
of  the  general  assembly.  Two  of  these  were  vetoed  because  the  state 
was  not  liable  and  one  because  the  accident  was  the  result  of  the  negli- 
gence of  the  injured  person  and  not  the  result  of  negligence  of  the 
state. 

Especial  attention  should  be  called  to  the  fact  that  the  act  of  1917 
vested  in  the  court  of  claims  authority  “to  hear  and  determine  the 
liability  of  the  state  for  accidental  injuries  or  death  suffered  in  the 
course  of  employment  by  any  employe  of  the  state,  such  determination 
to  be  made  in  accordance  with  the  rules  prescribed  in  the  act  com- 
monly called  the  ‘workmen’s  compensation  act ;’  the  industrial  com- 
mission hereby  being  relieved  of  any  duties  relative  hereto.”  Before 
this  legislation  the  Industrial  Commission  (whose  title  was  industrial 
board  before  July  1,  1917),  had  authority  in  this  matter  with  respect 
to  state  employes. 


Claims  against  the  United  States.  By  1854  claims  against  the 

United  States  became  so  numerous  and  the  difficulties  of  discovering 
the  real  facts  became  so  great  that  few  of  them  were  acted  upon,  and 
many  honest  creditors  of  the  United  States  were  turned  away  without 
a hearing,  and  others  were  deterred  from  presenting  their  petitions  for 
redress  by  the  difficulties  in  the  way  of  ever  reaching  a final  determina- 
tion, while  it  was  occasionally  found  that,  upon  hasty  consideration  or 
imperfect  ex  parte  evidence,  a claim  was  allowed  and  paid  which  was, 
to  say  the  least,  of  doubtful  validity.  To  relieve  this  situation  and  to 
afford  an  opportunity  for  the  systematic  investigation  of  claims,  the 
United  States  Court  of  Claims  was  created  in  1855. 


871 


The  following  quotation  from  Professor  Ernst  Freund  gives  a 
summary  statement  regarding  the  United  States  Court  of  Claims: 
“Congress,  in  1855,  created  a court  of  claims  by  virtue  of  its  constitu- 
tional power  to  establish  inferior  courts.30  Under  the  provisions  of 
this  act,  however,  the  decisions  of  the  court  were  reported  back  to  con- 
gress for  special  action  on  each  separate  case,  and  the  committee  of 
claims  felt  bound  to  re-examine  each  claim  upon  its  merits.  In  this 
way  the  beneficial  effects  of  the  whole  act  were  almost  rendered  nuga- 
tory. By  an  amendatory  act,  passed  March  3,  1863,  Congress  provided, 
therefore,  that  all  judgments  of  the  court  should  be  paid  by  the  treas- 
ury out  of  any  general  appropriation  made  by  law  for  the  payment  of 
private  claims.31  As  the  same  act,  however,  provided  that  no  money 
should  be  paid  out  of  the  treasury  for  any  claim  until  after  an  estimate 
of  the  appropriation  for  the  purpose  should  have  been  made  by  the 
secretary  of  the  treasury,  the  supreme  court  held  that  this  by  implica- 
tion gave  power  to  the  secretary  to  revise  decisions  of  the  court  of 
claims,  and  that  such  decisions,  consequently,  did  not  bear  the  char- 
acter of  judgments  over  which,  under  the  constitution,  the  supreme 
court  could  exercise  appellate  jurisdiction.32  The  obnoxious  provision 
was  repealed  in  1866,  and  the  awards  of  the  court  of  claims  were  from 
that  time  recognized  as  final  and  conclusive  judgments.  By  act  of 
March  3,  1887,  the  United  States  circuit  and  district  courts  were  vested 
with  substantially  concurrent  jurisdiction  with  the  court  of  claims.”33 


New  York  commission  of  claims.  The  New  York  constitution 
provides ; “The  legislature  shall  neither  audit  nor  allow  any  private 
claim  or  account  against  the  state,  but  may  appropriate  money  to  pay 
such  claims  as  shall  have  been  audited  and  allowed  according  to  law.”34 
The  legislature  of  New  York  has  at  various  times  created  boards  or 
tribunals  to  pass  upon  and  audit  claims  against  the  state.  The  follow- 
ing account  was  written  by  Professor  Ernst  Freund  in  1893  :35  “In 
New  York,  where  the  legislature  has  no  constitutional  power  to  estab- 
lish other  than  inferior  local  courts,  the  bodies  to  which  the  adjudica- 
tion of  claims  against  the  state  has  from  time  to  time  been  committed 
bear  merely  the  character  of  commissions ; their  awards  have  not  the 
full  force  and  effect  of  judgments.  The  supreme  court  has  not  been 
entrusted  with  this  jurisdiction.  A judicial  determination  of  claims 
against  the  state  was  first  felt  to  be  a necessity  in  connection  with  the 
state  ownership  and  management  of  canals.  It  was  committed  to  a 
board  of  canal  appraisers  by  act  of  1870,  Chapter  321.  For  other 
claims  against  the  state  the  legislature,  in  1876,  created  a board  of  more 
general  jurisdiction,  called  the  board  of  audit These  two  boards 

30  U.  S.  Revised  Statutes,  par.  1049. 

31 U.  S.  Revised  Statutes,  par.  1089. 

32  Gordon  v U.  S.  2 Wall.  561. 

33  Political  Science  Quarterly,  VIII.,  628.  Under  the  Judicial  code  enacted 
in  1911,  this  jurisdiction  is  now  in  the  district  courts. 

34  Constitution  of  New  York,  Art.  Ill,  Sec.  19. 

35  Freund,  Ernst.  Private  claims  against  the  state,  8 Pol.  Science  Quar- 
terly, p.  629. 


m 


were  finally  merged  in  1883  into  a more  independent  commission,  called 
the  board  of  claims,  consisting  of  three  commissioners An  ap- 

peal from  the  awards  of  this  board  lies  to  the  court  of  appeals.  The 
awards  are  reported  to  the  legislature,  and  require  a special  appro- 
priation to  become  payable ; so  that  now,  as  before,  the  final  disposition 
of  claims  against  the  state  depends  upon  legislative  action.  It  was 
plainly  the  intention  of  the  legislature,  however,  to  assimilate  the 
powers  and  proceedings  of  the  board  of  claims  to  those  of  a regular 
court,  and  the  necessary  appropriations  are  made  as  a matter  of  course 
and  without  re-examination  of  the  merits  of  the  respective  claims.” 

In  1897  the  name  of  the  board  of  claims  was  changed  to  the  court 
of  claims.30  No  change  was  made,  however,  in  its  jurisdiction,  and  it 
was  held  that  the  court  of  claims  was  not  a judicial  organization.37  The 
name  was  again  changed  to  the  Board  of  Claims  in  1911. 38 


Provisions  in  other  states.  The  constitution  of  Alabama, 
Arkansas  and  West  Virginia,  like  that  of  Illinois,  provide  that  the 
state  shall  not  be  made  a defendant  in  any  court. 

In  twenty-one  states39  the  constitutions  permit  the  state  to  be  sued, 
or  provide  that  the  legislature  may  allow  such  suits,  the  more  common 
provision  being  that  authorizing  legislation  upon  the  matter. 

In  Idaho  and  North  Carolina  the  constitutions  provide  that  the 
highest  court  shall  have  original  jurisdiction  in  all  claims  against  the 
state,  but  that  their  decisions  shall  be  merely  recommendatory,  and  that 
no  process  shall  issue  thereon.  The  Louisiana  constitutional  provision 
gives  the  legislature  power  to  provide  that  suits  may  be  instituted 
against  the  state  in  the  district  court  at  the  capitol,  and  also  provides 
that  the  object  of  such  suits  and  the  only  efifect  of  judgment  shall  be 
judicial  interpretation  of  the  legal  rights  of  the  legislature  in  making 
appropriations. 

With  possibly  two  exceptions,  these  constitutional  provisions  are 
not  self-executing,  and  few  states  have  passed  laws  allowing  suits 
against  the  state.  In  Arizona  and  California  the  laws  provide  that  suits 
may  be  brought  in  any  court  against  the  state  on  contract  or  for  neg- 
ligence. In  Indiana,  Mississippi,  Nebraska  and  Nevada,  suits  may  be 
brought  on  contracts,  but  only  in  the  courts  at  the  county  in  which  the 
capitol  is  located.  In  North  Dakota,  actions  respecting  the  title  to 
property  or  arising  upon  contract  may  be  brought  in  the  district  court, 
and  if  not  of  a local  nature,  such  actions  must  be  brought  in  the  county 
in  which  the  capitol  is  located.  The  statutes  of  California,  Mississippi, 
Nebraska,  Nevada  and  North  Dakota  require  that  the  claim  be  pre- 
sented to  the  auditor  of  public  accounts  or  to  a state  board  of  ex- 
aminers and  refused  before  suit  can  be  brought.  Wisconsin  permits  a 

36  Laws  of  1897,  Chap.  36. 

37  Swift  v Luce,  204  N.  Y.  47&  (1912). 

38  Laws  of  1911,  Chap.  856. 

39  Arizona,  California,  Delaware,  Florida,  Idaho.  Indiana,  Kentucky,  Louisi- 
ana, Nebraska,  Nevada,  North  Carolina,  North  Dakota,  Ohio,  Oregon,  Penn- 
sylvania, South  Carolina,  South  Dakota,  Tennessee,  Washington  Wisconsin, 
Wyoming. 


suit  if  the  legislature  refuses  a claim.  In  Massachusetts  suits  may  be 
brought  in  the  superior  court. 

Connecticut,  Idaho  and  Utah  do  not  allow  suits,  but  have  boards  or 
commissions  to  examine  contract  claims.  In  Kansas  each  branch  of 
the  legislature  has  a committee  on  claims. 


Conclusions.  There  is  a long-established  principle  of  English 
law  that  the  sovereign  cannot  be  sued  without  its  consent,  but  in  Eng- 
land this  theory  was  coupled  with  legal  machinery  through  which  the 
sovereign  gave  its  consent  to  be  sued.  The  doctrine  that  the  state  can- 
not be  sued  without  its  consent  was  adopted  as  to  the  American  states, 
but  without  the  legal  machinery  by  which  the  state  should  consent  to 
be  sued.  The  state  legislature  thus  became  the  organ  to  adjudicate 
claims,  and  such  matters  were  handled  by  appropriations.  This  situ- 
ation soon  proved  unsatisfactory.  Neither  congress  nor  the  state  legis- 
latures possessed  adequate  facilities  for  the  investigation  of  claims. 
For  this  reason,  congress  created  a court  of  claims  in  1855,  and  a num- 
ber of  states  have  set  up  machinery  for  the  investigation  of  claims. 

A small  group  of  state  constitutions  expressly  prohibit  suits  against 
the  state.  Illinois  is  in  this  group,  through  a reversal  of  policy  in  1870, 
due  to  a specific  local  situation. 

Twenty  state  constitutions  expressly  authorize  suits  against  the 
state,  but  the  bulk  of  them  do  so  if  legislation  is  enacted  for  the  pur- 
pose, and  in  only  a few  of  these  states  has  such  legislation  been  enacted. 
In  the  absence  of  constitutional  provision  either  authorizing  or  pro- 
hibiting suits  against  the  state,  legislature  may  authorize  such  suits ; 
although  if  a state  constitution  specifies  what  courts  may  be  created,  a 
separate  court  for  this  purpose  could  not  be  set  up,  even  though  the 
legislature  might  authorize  suits  against  the  state. 

The  real  problem  is  that  as  to  whether  a judicial  remedy  is  better 
than  investigation  by  a board.  The  remedy  obtained  through  suit 
against  the  state  is  likely  to  limit  itself  to  purely  legal  rights  as  dis- 
tinguished from  those  in  which  a claim  may  exist  as  a matter  of  con- 
science ; and  suits  against  the  state  where  permitted  will  ordinarily  be 
conducted  in  accordance  with  technical  rules  of  procedure. 

The  presentation  of  claims  before  a purely  administrative  body  (as 
is  the  Illinois  court  of  claims)  is,  on  the  other  hand,  likely  to  afford  a 
more  flexible  procedure.  Under  the  administrative  plan,  of  course, 
awards  are  not  paid  unless  the  general  assembly  appropriates  for  the 
purpose,  but  appropriations  are  almost  certain  to  be  made  in  such  a 
case.  The  problem  of  most  specific  interest  in  Illinois  today  is  oc- 
casioned by  the  fact  that  the  general  assembly  has  discretion  to  appro- 
priate for  the  payment  of  claims,  irrespective  of  whether  they  have 
been  allowed  by  the  body  set  up  for  their  adjudication. 

The  large  project  of  construction  now  being  undertaken  by  the 
state  of  Illinois  makes  this  problem  more  important  than  at  any  other 
time  in  the  state’s  history.  The  following  alternatives  present  them- 
selves as  to  this  matter : 


874 


1.  The  presentation  of  claims  directly  to  the  general  assembly, 
with  that  body  appropriating  to  meet  those  which  it  finds  proper.  This 
plan  is  to  some  extent  still  employed  in  Illinois,  though  it  would  almost 
certainly  prove  unsatisfactory  for  the  determination  of  a large  number 
of  claims.  The  Illinois  general  assembly  in  1917  enacted  into  a law  a 
provision  that  appropriations  should  not  be  made  to  pay  claims,  unless 
they  were  first  passed  upon  by  the  court  of  claims  (if  within  the  juris- 
diction of  that  body),  but  this  enactment  is  apparently  a mere  declara- 
tion of  policy,  without  constitutional  validity. 

2.  The  state  might  return  to  the  constitutional  policy  of  1848,  un- 
der which  the  general  assembly  was  authorized  to  direct  the  manner  in 
which  suits  might  be  brought  against  the  state.  Such  a policy  would 
seem  to  imply  that  the  general  assembly  might  authorize  suit  in  any 
court  of  record,  though,  of  course,  a constitutional  provision  could  itself 
determine  the  method  of  bringing  suit. 

3.  The  state  could  adopt  the  policy  of  the  national  government  and 
set  up  a court  (a  judicial  body  in  fact  as  well  as  in  name)  to  pass  upon 
claims  against  it.  Such  a body  could  not  be  set  up  under  the  present 
constitution  of  Illinois,  for  the  courts  that  may  be  established  are  ex- 
pressly enumerated  in  the  constitution.  It  may  be  suggested  that  a 
permanent  judicial  body  for  this  purpose  is  undesirable  unless  claims 
are  numerous  and  likely  to  continue  so. 

4.  The  state  may  adhere  to  the  present  statutory  plan,  with  a 
board  having  authority  to  make  awards,  such  awards  to  be  paid  only 
after  legislative  appropriations.  If  such  a plan  is  adopted,  attention 
may  well  be  given  to  the  New  York  constitutional  provisions  under 
which  the  legislature  is  itself  forbidden  to  audit  or  allow  any  private 
claim. 

Here  as  elsewhere  in  the  constitution  it  is  desirable  merely  to  lay 
down  the  general  policy  in  the  constitution,  rather  than  to  make  de- 
tailed specifications. 


875 


APPENDIX  NO.  1.  REFERENCES. 


Baldwin,  Simeon  E.  The  American  Judiciary.  New  York.  The  Cen- 
tury Co.  1905. 

Illinois  State  Bar  Association.  Proceedings  1917,  pp.  317-365,  393-427. 
Series  of  papers  on  almost  every  phase  of  the  Illinois  judicial  situ- 
ation. 

Massachusetts  Constitutional  Convention  1917.  Bulletin  No.  16,  The 
Selection  and  Retirement  of  Judges.  Bulletin  No.  36,  The  Removal 
of  Judges  in  Massachusetts. 

Gilbert,  Hiram  T.  A proposed  judiciary  article  for  the  constitution  of 
1920  with  explanatory  notes. 

Carter,  Orrin  N.  Methods  of  Work  in  Courts  of  Review.  Illinois 
Law  Review,  Vol.  XII,  No.  4 (1917). 

Edwards,  George  J.  The  Grand  Jury.  Philadelphia,  1906. 

Singewald,  K.  Stability  of  States.  Johns  Plopkins  University  Studies. 
Vol.  35  (1915). 

Hall,  James  Parker.  The  Selection,  Tenure  and  Retirement  of  Judges. 
American  Judicature  Society  Bulletin  X (1915). 

Kales,  Albert  M.  Methods  of  Selecting  and  Retiring  Judges.  Amer- 
ican Judicature  Society  Bulletin  VI  (1914). 

Taft,  William  H.  The  Selection  and  Retirement  of  Judges.  Report 
American  Bar  Association,  1913. 

Pound,  Roscoe.  Regulation  of  Judicial  Procedure  By  Rules  of  Court. 
Illinois  Law  Review,  X,  163  (1915). 

American  Judicature  Society.  Bulletin  IV,  First  Draft  of  an  Act  to 
Establish  a Model  Court  for  a Metropolitan  District.  Bulletin  VII, 
First  Draft  of  a State-Wide  Judicature  Act.  Bulletin  VIIA,  A Re- 
vised Draft  of  a State-Wide  Judicature  Act. 

Rosenbaum,  Samuel.  Rule  Making  Authority  in  the  English  Supreme 
Court.  Boston,  1917  (University  of  Pennsylvania  Law  School 
Series  No.  4). 


876 


APPENDIX  NO.  2.  ILLINOIS  CONSTITUTIONAL 
PROVISIONS. 


Article  VI. 

Judicial  department 

§ 1.  The  judicial  powers,  except  as  in  this  article  is  otherwise 
provided,  shall  be  vested  in  one  Supreme  Court,  circuit  courts,  county 
courts,  justices  of  the  peace,  police  magistrates,  and  in  such  courts 
as  may  be  created  by  law  in  and  for  cities  and  incorporated  towns. 

SUPREME  COURT 

§ 2.  The  Supreme  Court  shall  consist  of  seven  judges,  and  shall 
have  original  jurisdiction  in  cases  relating  to  the  revenue,  in  mandamus 
and  habeas  corpus , and  appellate  jurisdiction  in  all  other  cases.  One 
of  said  judges  shall  be  Chief  Justice;  four  shall  constitute  a quorum, 
and  the  concurrence  of  four  shall  be  necessary  to  every  decision. 

§ 3.  No  person  shall  be  eligible  to  the  office  of  judge  of  the  Su- 
preme Court  unless  he  shall  be  at  least  thirty  years  of  age,  and  a citi- 
zen of  the  United  States,  nor  unless  he  shall  have  resided  in  this 
State  five  years  next  preceding  his  election,  and  be  a resident  of  the 
district  in  which  he  shall  be  elected. 

§ 4.  Terms  of  the  Supreme  Court  shall  continue  to  be  held  in  the 
present  grand  divisions  at  the  several  places  now  provided  for  holding 
the  same ; and  until  otherwise  provided  by  law,  one  or  more  terms 
of  said  court  shall  be  held,  for  the  Northern  division,  in  the  city  of 
Chicago  each  year,  at  such  times  as  said  court  may  appoint,  whenever 
said  city  or  the  county  of  Cook  shall  provide  appropriate  rooms  there- 
for, and  the  use  of  a suitable  library,  without  expense  to  the  State. 
The  judicial  divisions  may  be  altered,  increased  or  diminished  in 
number,  and  the  times  and  places  of  holding  said  court  may  be  changed 
by  law. 

§ 5.  The  present  grand  divisions  shall  be  preserved,  and  be  de- 
nominated Southern,  Central  and  Northern,  until  otherwise  provided 
by  law.  The  State  shall  be  divided  into  seven  districts  for  the  election 
of  judges,  and  until  otherwise  provided  by  law  they  shall  be  as  follows : 

First  District — The  counties  of  St.  Clair,  Clinton,  Washington, 
Jefferson,  Wayne,  Edwards,  Wabash,  White,  Hamilton,  Franklin, 
Perry,  Randolph,  Monroe,  Jackson,  Williamson,  Saline,  Gallatin,  Har- 
din, Pope,  Union,  Alexander,  Pulaski  and  Massac. 

Second  District. — The  counties  of  Madison,  Bond,  Marion,  Clay, 
Richland,  Lawrence,  Crawford,  Jasper,  Effingham,  Fayette,  Mont- 
gomery, Macoupin,  Shelby,  Cumberland,  Clark,  Greene,  Jersey,.  Cal- 
houn and  Christian. 


Third  District — The  counties  of  Sangamon,  Macon,  Logan,  De- 
Witt,  Piatt.  Douglas,  Champaign,  Vermilion,  McLean,  Livingston, 
Ford,  Iroquois,  Coles,  Edgar,  Moultrie  and  Tazewell. 

Fourth  District — The  counties  of  Fulton,  McDonough,  Hancock, 
Schuyler,  Brown,  Adams,  Pike,  Mason,  Menard,  Morgan,  Cass  and 
Scott. 

Fifth  District — The  counties  of  Knox,  Warren,  Henderson,  Mer- 
cer, Henry,  Stark,  Peoria,  Marshall,  Putnam,  Bureau,  LaSalle,  Grundy, 
and  Woodford. 

Sixth  District — The  counties  of  Whiteside,  Carroll,  Jo  Daviess, 
Stephenson,  Winnebago,  Boone,  McHenry,  Kane,  Kendall,  DeKalb, 
Lee,  Ogle,  and  Rock  Island. 

Seventh  District — The  counties  of  Lake,  Cook,  Will.  Kankakee 
and  DuPage. 

The  boundaries  of  the  districts  may  be  changed  at  the  session  of 
the  General  Assembly  next  preceding  the  election  of  judges  therein, 
and  at  no  other  time ; but  whenever  such  alterations  shall  be  made  the 
same  shall  be  upon  the  rule  of  equality  of  population,  as  nearly  as 
county  boundaries  will  allow,  and  the  districts  shall  be  composed  of 
contiguous  counties,  in  as  nearly  compact  form  as  circumstances  will 
permit.  The  alteration  of  the  districts  shall  not  affect  the  tenure  of 
office  of  any  judge. 

§ 6.  At  the  time  of  voting  on  the  adoption  of  this  Constitution, 
one  judge  of  the  Supreme  Court  shall  be  elected  by  the  electors  there- 
of, in  each  of  said  districts  numbered  two,  three,  six  and  seven,  who 
shall  hold  his  office  for  the  term  of  nine  years  from  the  first  Monday 
of  June,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
seventy.  The  term  of  office  of  judges  of  the  Supreme  Court,  elected 
after  the  adoption  of  this  Constitution,  shall  be  nine  years,  and  on  the 
first  Monday  of  June  of  the  year  in  which  the  term  of  any  of  the  judges 
in  office  at  the  adoption  of  this  Constitution,  or  of  the  judges 
then  elected,  shall  expire,  and  every  nine  years  thereafter,  there  shall 
be  an  election  for  the  successor  or  successors  of  such  judges  in  the 
respective  districts  wherein  the  term  of  such  judges  shall  expire. 
The  Chief  Justice  shall  continue  to  act  as  such  until  the  expiration 
of  the  term  for  which  he  was  elected,  after  which  the  judges  shall 
choose  one  of  their  number  Chief  Justice. 

§ 7.  From  and  after  the  adoption  of  this  Constitution,  the  judges 
of  the  Supreme  Court  shall  each  receive  a' salary  of  four  thousand  dol- 
lars per  annum,  payable  quarterly,  until  otherwise  provided  by  law. 
And  after  said  salaries  shall  be  fixed  by  law,  the  salaries  of  the  judges 
in  office  shall  not  be  increased  or  diminished  during  the  terms  for 
which  said  judges  shall  have  been  elected. 

§ 8.  Appeals  and  writs  of  error  may  be  taken  to  the  Supreme 
Court  held  in  the  grand  division  in  which  the  case  is  decided,  or  by 
consent  of  the  parties,  to  any  other  grand  division. 

§ 9.  The  Supreme  Court  shall  appoint  one  reporter  of  its  de- 
cisions, who  shall  hold  his  office  for  six  years,  subject  to  removal  by 
the  court. 


878 


§ 10.  At  the  time  of  the  election  of  Representatives  in  the  General 
Assembly,  happening  next  preceding  the  expiration  of  the  terms  of 
office  of  the  present  clerks  of  said  court,  one  clerk  of  said  court  for 
each  division  shall  be  elected,  whose  term  of  office  shall  be  six  years 
from  said  election,  but  who  shall  not  enter  upon  the  duties  of  his  office 
until  the  expiration  of  the  term  of  his  predecessor,  and  every  six  years 
thereafter  one  clerk  of  said  court  for  each  division  shall  be  elected. 

APPELLATE  COURTS 

§ 11.  After  the  year  of  our  Lord  one  thousand  eight  hundred  and 
seventy-four,  inferior  appellate  courts,  of  uniform  organization  and 
jurisdiction,  may  be  created  in  districts  formed  for  that  purpose,  to 
which  such  appeals  and  writs  of  error  as  the  General  Assembly  may 
provide,  may  be  prosecuted  from  circuit  and  other  courts,  and  from 
which  appeals  and  writs  of  error  shall  lie  to  the  Supreme  Court,  in  all 
criminal  cases,  and  cases  in  which  a franchise,  or  freehold,  or  the 
validity  of  a statute  is  involved,  and  in  such  other  cases  as  may  be 
provided  by  law.  Such  appellate  courts  shall  be  held  by  such  number 
of  judges  of  the  circuit  courts,  and  at  such  times  and  places,  and  in 
such  manner  as  may  be  provided  by  law  : but  no  judge  shall  sit  in  re- 
view upon  cases  decided  by  him;  nor  shall  said  judges  receive  any 
additional  compensation  for  such  services. 

CIRCUIT  COURTS 

§ 12.  The  circuit  courts  shall  have  original  jurisdiction  of  all 
causes  in  law  and  equity,  and  such  appellate  jurisdiction  as  is  or  may 
be  provided  by  law,  and  shall  hold  two  or  more  terms  each  year  in 
every  county.  The  terms  of  office  of  judges  of  circuit  courts  shall  be 
six  years. 

§ 13.  The  State,  exclusive  of  the  county  of  Cook  and  other  coun- 
ties having  a population  of  100,000,  shall  be  divided  into  judicial  cir- 
cuits, prior  to  the  expiration  of  the  terms  of  office  of  the  present 
judges  of  the  circuit  courts.  Such  circuits  shall  be  formed  of  con- 
tiguous counties,  in  as  nearly  compact  form  and  as  nearly  equal  as  cir- 
cumstances will  permit,  having  due  regard  to  business,  territory  and 
population,  and  shall  not  exceed  in  number  one  circuit  for  every 
100,000  of  population  of  the  State.  One  judge  shall  be  elected  for 
each  of  said  circuits  by  the  electors  thereof.  New  circuits  may  be 
formed  and  the  boundaries  of  circuits  changed  by  the  General  As- 
sembly, at  its  session  next  preceding  the  election  for  circuit  judges,  but 
at  no  other  time:  Provided , that  the  circuits  may  be  equalized  or 

changed  at  the  first  session  of  the  General  Assembly  after  the  adoption 
of  this  Constitution.  The  creation,  alteration  or  change  of  any  circuit 
shall  not  affect  the  tenure  of  office  of  any  judge.  Whenever  the  busi- 
ness of  the  circuit  court  of  any  one,  or  of  two  or  more  contiguous 
counties,  containing  a population  exceeding  50,000,  shall  occupy  nine 
months  of  the  year,  the  General  Assembly  may  make  of  such  county, 
or  counties,  a separate  circuit.  Whenever  additional  circuits  are 
created,  the  foregoing  limitations'  shall  be  observed. 

§ 14.  The  General  Assembly  shall  provide  for  the  times  of  hold- 
ing court  in  each  county ; which  shall  not  be  changed,  except  by  the 


879 


General  Assembly  next  preceding  the  general  election  for  judges  of 
said  courts;  but  additional  terms  may  be  provided  for  in  any  county. 
The  election  for  judges  of  the  circuit  courts  shall  be  held  on  the  first 
Monday  in  June  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  seventy-three,  and  every  six  years  thereafter. 

§ 15.  The  General  Assembly  may  divide  the  State  into  judicial 
circuits  of  greater  population  and  territory,  in  lieu  of  the  circuits  pro- 
vided for  in  section  13  of  this  article,  and  provide  for  the  election 
therein,  severally,  by  the  electors  thereof,  by  general  ticket,  of  not 
exceeding  four  judges,  who  shall  hold  the  circuit  courts  in  the  circuit 
for  which  they  shall  be  elected,  in  such  manner  as  may  be  provided 
by  law. 

§ 16.  From  and  after  the  adoption  of  this  Constitution,  judges  of 
the  circuit  courts  shall  receive  a salary  of  $3,000.00  per  annum,  payable 
quarterly  until  otherwise  provided  by  law,  and  after  their  salaries  shall 
be  fixed  by  law  they  shall  not  be  increased  or  diminished  during  the 
terms  for  which  said  judges  shall  be,  respectively,  elected;  and  from 
and  after  the  adoption  of  this  Constitution,  no  judge  of  the  Supreme 
or  circuit  court  shall  receive  any  other  compensation,  perquisite  or 
benefit,  in  any  form  whatsoever,  nor  perform  any  other  than  judicial 
duties  to  which  may  belong  any  emoluments. 

§ 17.  No  person  shall  be  eligible  to  the  office  of  judge  of  the  cir- 
cuit or  any  inferior  court,  or  to  membership  in  the  “board  of  county 
commissioners,”  unless  he  shall  be  at  least  twenty-five  years  of  age 
and  a citizen  of  the  United  States,  nor  unless  he  shall  have  resided  in 
this  State  five  years  next  preceding  his  election,  and  be  a resident  of 
the  circuit,  county,  city,  cities  or  incorporated  town  in  which  he  shall 
be  elected. 

COUNTY  COURTS 

§ 18.  There  shall  be  elected  in  and  for  each  county  one  county 
judge  and  one  clerk  of  the  county  court,  whose  term  of  office  shall  be 
four  years.  But  the  General  Assembly  may  create  districts  of  two  or 
more  contiguous  counties,  in  each  of  which  shall  be  elected  one  judge, 
who  shall  take  the  place  of  and  exercise  the  powers  and  jurisdiction 
of  county  judges  in  such  districts.  County  courts  shall  be  courts  of 
record,  and  shall  have  original  jurisdiction  in  all  matters  of  probate, 
settlement  of  estates  of  deceased  persons,  appointment  of  guardians 
and  conservators  and  settlement  of  their  accounts,  in  all  matters  relat- 
ing to  apprentices,  and  in  proceedings  for  the  collection  of  taxes  and 
assessments,  and  such  other  jurisdiction  as  may  be  provided  for  by 
general  law. 

§ 19.  Appeals  and  writs  of  error  shall  be  allowed  from  final  de- 
terminations of  county  courts,  as  may  be  provided  by  law. 

PROBATE  COURTS 

§ 20.  The  General  Assembly  may  provide  for  the  establishment  of 
a probate  court  in  each  county  having  a population  of  over  50,000,  and 
for  the  election  of  a judge  thereof,  whose  term  of  office  shall  be  the 
same  as  that  of  the  county  judge,  and  who  shall  be  elected  at  the  same 
time  and  in  the  same  manner.  Said  courts,  when  established,  shall 


880 


have  original  jurisdiction  of  all  probate  matters,  the  settlement  of 
estates  of  deceased  persons,  the  appointment  of  guardians  and  con- 
servators, and  settlement  of  their  accounts ; in  all  matters  relating  to 
apprentices,  and  in  cases  of  sales  of  real  estate  of  deceased  persons  for 
the  payment  of  debts. 

JUSTICES  OF  THE- PEACE  AND  CONSTABLES 

§ 21.  Justices  of  the  peace,  police  magistrates  and  constables  shall 
be  elected  in  and  for  such  districts  as  are,  or  may  be  provided  by  law, 
and  the  jurisdiction  of  such  justices  of  the  peace  and  police  magis- 
trates shall  be  uniform. 

state's  attorneys 

§ 22.  At  the  election  for  members  of  the  General  Assembly  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  seventy-two,  and 
every  four  years  thereafter,  there  shall  be  elected  a State’s  attorney  in 
and  for  each  county,  in  lieu  of  the  State’s  attorneys  now  provided  by 
law,  whose  term  of  office  shall  be  four  years. 

COURTS  OF  COOK  COUNTY 

§ 23.  The  county  of  Cook  shall  be  one  judicial  circuit.  The  cir- 
cuit court  of  Cook  County  shall  consist  of  five  judges,  until  their  num- 
ber shall  be  increased  as  herein  provided.  The  present  judge  of  the 
recorder’s  court  of  the  city  of  Chicago,  and  the  present  judge  of  the 
circuit  court  of  Cook  County,  shall  be  two  of  said  judges,  and  shall 
remain  in  office  for  the  terms  for  which  they  were  respectively  elected, 
and  until  their  successors  shall  be  elected  and  qualified.  The  superior 
court  of  Chicago  shall  be  continued,  and  called  the  “Superior  Court  of 
Cook  County.”  The  General  Assembly  may  increase  the  number  of 
said  judges,  by  adding  one  to  either  of  said  courts  for  every  additional 
fifty  thousand  inhabitants  in  said  county  over  and  above  a population 
of  four  hundred  thousand.  The  terms  of  office  of  the  judges  of  said 
courts,  hereafter  elected,  shall  be  six  years. 

§ 24.  The  judge  having  the  shortest  unexpired  term  shall  be  Chief 
Justice  of  the  court  of  which  he  is  a judge.  In  case  there  are  two  or 
more  whose  terms  expire  at  the  same  time,  it  may  be  determined  by 
lot  which  shall  be  Chief  Justice.  Any  judge  of  either  of  said  courts 
shall  have  all  the  powers  of  a circuit  judge,  and  may  hold  the  court  of 
which  he  is  a member.  Each  of  them  may  hold  a different  branch 
thereof  at  the  same  time. 

§ 25.  The  judges  of  the  superior  and  circuit  courts,  and  the 
State’s  attorney,  in  said  county,  shall  receive  the  same  salaries,  pay- 
able out  of  the  State  treasury,  as  is  or  may  be  paid  from  said  treasury 
to  the  circuit  judges  and  State’s  attorney’s  of  the  State,  and  such  fur- 
ther compensation,  to  be  paid  by  the  county  of  Cook,  as  is  or  may  be 
provided  by  law.  Such  compensation  shall  not  be  changed  during  their 
continuance  in  office. 

§ 26.  The  recorder’s  court  of  the  city  of  Chicago  shall  be  con- 
tinued, and  shall  be  called  the  “Criminal  Court  of  Cook  County.”  It 
shall  have  the  jurisdiction  of  a circuit  court  in  all  cases  of  criminal  and 
quasi  criminal  nature,  arising  in  the  county  of  Cook,  or  that  may  be 


881 


brought  before  said  court  pursuant  to  law ; and  all  recognizances  and 
appeals  taken  in  said  county,  in  criminal  and  quasi  criminal  cases  shall 
be  returnable  and  taken  to  said  court.  It  shall  have  no  jurisdiction  in 
civil  cases,  except  in  those  on  behalf  of  the  people,  and  incident  to 
such  criminal  or  quasi  criminal  matters,  and  to  dispose  of  unfinished 
business.  The  terms  of  said  criminal  court  of  Cook  County  shall  be 
held  by  one  or  more  of  the  judges  of  the  circuit  or  superior  court  of 
Cook  County,  as  nearly  as  may  be  in  alteration,  as  may  be  determined 
by  said  judges,  or  provided  by  law.  Said  judges  shall  be  ex-officio 
judges  of  said  court. 

§ 27.  The  present  clerk  of  the  recorder’s  office  of  the  city  of  Chi- 
cago shall  be  the  clerk  of  the  criminal  court  of  Cook  County  during 
the  term  for  which  he  was  elected.  The  present  clerks  of  the  superior 
court  of  Chicago,  and  the  present  clerk  of  the  circuit  court  of  Cook 
County,  shall  continue  in  office  during  the  terms  for  which  they  were 
respectively  elected ; and  thereafter  there  shall  be  but  one  clerk  of  the 
superior  court,  to  be  elected  by  the  qualified  electors  of  said  county, 
who  shall  hold  his  office  for  the  term  of  four  years,  and  until  his  suc- 
cessor is  elected  and  qualified. 

§ 28.  All  justices  of  the  peace  in  the  city  of  Chicago  shall  be  ap- 
pointed by  the  Governor,  by  and  with  the  advice  and  consent  of  the 
Senate  (but  only  upon  the  recommendation  of  a majority  of  the 
judges  of  the  circuit,  superior  and  county  court),  and  for  such  districts 
as  are  now  or  shall  hereafter  be  provided  by  law.  They  shall  hold 
their  office  for  four  years,  and  until  their  successors  have  been  com- 
missioned and  qualified,  but  they  may  be  removed  by  summary  pro- 
ceeding in  the  circuit  or  superior  court,  for  extortion  or  other  mal- 
feasance. Existing  justices  of  the  peace  and  police  magistrates  may 
hold  their  offices  until  the  expiration  of  their  respective  terms. 

GENERAL  PROVISIONS 

§ 29.  All  judicial  officers  shall  be  commissioned  by  the  Governor. 
All  laws  relating  to  courts  shall  be  general  and  of  uniform  operation, 
and  the  organization,  jurisdiction,  powers,  proceedings  and  practice  of 
all  courts  of  the  same  class  or  grade,  so  far  as  regulated  by  law,  and 
the  force  and  effect  of  the  process,  judgments  and  decrees  of  such 
courts,  severally,  shall  be  uniform. 

§ 30.  The  General  Assembly  may,  for  cause  entered  on  the 
journals,  upon  due  notice  and  opportunity  of  defense,  remove  from 
office  any  judge,  upon  concurrence  of  three-fourths  of  all  the  members 
elected,  of  each  house.  All  other  officers  in  this  article  mentioned  shall 
be  removed  from  office  on  prosecution  and  final  conviction  for  mis- 
demeanor in  office. 

§ 31.  All  judges  of  courts  of  record,  inferior  to  the  Supreme 
Court,  shall,  on  or  before  the  first  day  of  June  of  each  year,  report  in 
writing  to  the  judges  of  the  Supreme  Court  such  defects  and  omis- 
sions in  the  laws  as  their  experience  may  suggest;  and  the  judges  of 
the  Supreme  Court  shall,  on  or  before  the  first  day  of  January  of  each 
year,  report  in  writing  to- the  Governor  such  defects  and  omissions  in 
the  Constitution  and  laws  as  they  may  find  to  exist,  together  with 


882 


appropriate  forms  of  bills  to  cure  such  defects  and  omission  in  the 
laws.  And  the  judges  of  the  several  circuit  courts  shall  report  to  the 
next  General  Assembly  the  number  of  days  they  have  held  court  in 
the  several  counties  composing  their  respective  circuits,  the  preceding 
two  years. 

§ 32.  All  officers  provided  for  in  this  article  shall  hold  their  offices 
until  their  successors  shall  be  qualified,  and  they  shall  respectively, 
reside  in  the  division,  circuit,  county  or  district  for  which  they  may  be 
elected  or  appointed.  The  terms  of  office  of  all  such  officers,  where 
not  otherwise  prescribed  in  this  article,  shall  be  four  years.  All 
officers,  where  not  otherwise  provided  for  in  this  article,  shall  perform 
such  duties  and  receive  such  compensation  as  is  or  may  be  provided 
by  law.  Vacancies  in  such  elective  offices  shall  be  filled  by  election; 
but  where  the  unexpired  term  does  not  exceed  one  year  the  vacancy 
shall  b.e  filled  by  appointment,  as  follows:  Of  judges,  by  the  Gov- 

ernor; of  clerks  of  courts,  by  the  court  to  which  the  office  appertains, 
or  by  the  judge  or  judges  thereof ; and  of  all  such  other  offices,  by  the 
board  of  supervisors,  or  board  of  county  commissioners,  in  the  county 
where  the  vacancy  occurs. 

§ 33.  All  process  shall  run : In  the  name  of  the  People  of  the 

State  of  Illinois;  and  all  prosecutions  shall  be  carried  on : In  the  name 
and  by  the  authority  of  the  People  of  the  State  of  Illinois ; and  con- 
clude: Against  the  peace  and  dignity  of  the  same.  “Population/’ 

whenever  used  in  this  article,  shall  be  determined  by  the  next  preced- 
ing census  of  this  State  or  of  the  United  States. 


Article  II. 

§ 5.  The  right  of  trial  by  jury,  as  heretofore  enjoyed,  shall  remain 
inviolate;  but  the  trial  of  civil  cases  before  justices  of  the  peace,  by  a 
jury  of  less  than  twelve  men,  may  be  authorized  by  law. 

§ 8.  No  person  shall  be  held  to  answer  for  a criminal  offense,  un- 
less on  indictment  of  a grand  jury,  except  in  cases  in  which  the  punish- 
ment is  by  fine,  or  imprisonment  otherwise  than  in  the  penitentiary, 
in  cases  of  impeachment,  and  in  cases  arising  in  the  army  and  navy, 
or  in  the  militia,  when  in  actual  service  in  time  of  war  or  public 
danger:  Provided,  that  the  grand  jury  may  be  abolished  by  law  in  all 
cases. 

§ 9.  In  all  criminal  prosecutions  the  accused  shall  have  the  right 
to  appear  and  defend  in  person  and  by  counsel ; to  demand  the  nature 
and  cause  of  the  accusation,  and  to  have  a copy  thereof ; to  meet  the 
witnesses  face  to  face,  and  to  have  process  to  compel  the  attendance 
of  witnesses  in  his  behalf,  and  a speedy  public  trial  by  an  impartial 
jury  of  the  county  or  district  in  which  the  offense  is  alleged  to  have 
been  committed. 

§ 13.  Private  property  shall  not  be  taken  or  damaged  for  public 
use  without  just  compensation.  Such  compensation,  when  not  made 
by  the  State,  shall  be  ascertained  by  a jury,  as  shall  be  prescribed  by 


883 


law.  The  fee  of  land  taken  for  railroad  tracks,  without  consent  of  the 
owners  thereof,  shall  remain  in  such  owners,  subject  to  the  use  for 
which  it  is  taken. 


Article  IV. 

§ 26.  The  State  of  Illinois  shall  never  be  made  defendant  in  any 
court  of  law'  or  equity. 

§ 34.  The  General  Assembly  shall  have  power,  subject  to  the  con- 
ditions and  limitations  hereinafter  contained,  to  pass  any  law  (local, 
special  or  general)  providing  a scheme  or  charter  of  local  municipal 
government  for  the  territory  now  or  hereafter  embraced  within  the 
limits  of  the  city  of  Chicago.  The  law  or  laws  so  passed  may  provide 
for  consolidating  (in  whole  or  in  part)  in  the  municipal  government 
of  the  city  of  Chicago,  the  powers  now  vested  in  the  city,  board  of 
education,  township,  park  and  other  local  governments  and  authorities 
having  jurisdiction  confined  to  or  within  said  territory,  or  any  part 
thereof,  and  for  the  assumption  by  the  city  of  Chicago  of  the  debts 
and  liabilities  (in  whole  or  in  part)  of  the  governments  or  corporate 
authorities  whose  functions  within  its  territory  shall  be  vested  in  said 
city  of  Chicago,  and  may  authorize  said  city,  in  the  event  of  its  becom- 
ing liable  for  the  indebtedness  of  two  or  more  of  the  existing  munic- 
ipal corporations  lying  wffiolly  within  said  city  of  Chicago,  to  become 
indebted  to  an  amount  (including  its  existing  indebtedness  and  the  in- 
debtedness of  all  municipal  corporations  lying  wholly  within  the  limits 
of  said  city,  and  said  city’s  proportionate  share  of  the  indebtedness  of 
said  county  and  sanitary  district  wffiich  share  shall  be  determined  in 
such  manner  as  the  General  Assembly  shall  prescribe)  in  the  aggre- 
gate not  exceeding  five  per  centum  of  the  full  value  of  the  taxable 
property  within  its  limits,  as  ascertained  by  the  last  assessment  either 
for  State  or  municipal  purposes  previous  to  the  incurring  of  such 
indebtedness  (but  no  new  bonded  indebtedness,  other  than  for  refund- 
ing purposes,  shall  be  incurred  until  the  proposition  therefore  shall  be 
consented  to  by  a majority  of  the  legal  voters  of  said  city  voting  on 
the  question  at  any  election,  general,  municipal  or  special)  ; and  may 
provide  for  the  assessment  of  property  and  the  levy  and  collection 
of  taxes  within  said  city  for  corporate  purposes  in  accordance  with 
the  principles  of  equality  and  uniformity  prescribed  by  this  Constitu- 
tion ; and  may  abolish  all  offices,  the  functions  of  which  shall  be  other- 
wise provided  for ; and  may  provide  for  the  annexation  of  territory  to 
or  disconnection  of  territory  from  said  city  of  Chicago  by  the  con- 
sent of  a majority  of  the  legal  voters  (voting  on  the  question  at  any 
election,  general,  municipal  or  special)  of  the  said  city  and  of  a ma- 
jority of  the  voters  of  such  territory,  voting  on  the  question  at  any 
election,  general,  municipal  or  special ; and  in  case  the  General  As- 
sembly shall  create  municipal  courts  in  the  city  of  Chicago  it  may 
abolish  the  offices  of  justices  of  the  peace,  police  magistrates  and 
constables  in  and  for  the  territory  within  said  city,  and  may  limit  the 
jurisdiction  of  justices  of  the  peace  in  the  territory  of  said  county  of 


884 


Cook  outside  of  said  city  to  that  territory,  and  in  such  case  the  juris- 
diction and  practice  of  said  municipal  courts  shall  be  such  as  the 
General  Assembly  shall  prescribe ; and  the  General  Assembly  may  pass 
all  laws  which  it  may  deem  requisite  to  effectually  provide  a complete 
system  of  local  municipal  government  in  and  for  the  city  of  Chicago. 

No  law  based  upon  this  amendment  to  the  Constitution,  affecting 
the  municipal  government  of  the  city  of  Chicago,  shall  take  effect 
until  such  law  shall  be  consented  to  by.  a majority  of  the  legal  voters 
of  said  city  voting  on  the  question  at  any  election,  general,  municipal 
or  special;  and  no  local  or  special  law  based  upon  this  amendment 
affecting  specially  any  part  of  the  city  of  Chicago  shall  take  effect 
until  consented  to  by  a majority  of  the  legal  voters  of  such  part  of 
said  city  voting  on  the  question  at  any  election,  general,  municipal  or 
special.  Nothing  in  this  section  contained  shall  be  construed  to  repeal, 
amend  or  affect  section  four  (4)  of  Article  XI  of  the  Constitution  of 
this  State. 


Article  X. 

§ 14.  The  exercise  of  power  and  the  right  of  eminent  domain  shall 
never  be  so  construed  or  abridged  as  to  prevent  the  taking,  by  the 
General  Assembly,  of  the  property  and  franchises  of  incorporated 
companies  already  organized,  and  subjecting  them  to  the  public  ne- 
cessity the  same  as  of  individuals.  The  right  of  trial  by  jury  shall  be 
held  inviolate  in  all  trials  of  claims  for  compensation,  when,  in  the 
exercise  of  the  said  right  of  eminent  domain,  any  incorporated  com- 
pany shall  be  interested  either  for  or  agamst  the  exercise  of  said  right. 


885 


APPENDIX  NO.  3 TABLES. 


TABLE  1. — Population  of  Supreme  Court  Election  Districts 

by  counties. 


First  District. 

Third  District. 

St.  Clair 

119,870 

Sangamon  . . . . 

91,024 

Clinton  

22,832 

Macon  

54,186 

Washington  

18,759 

Logan  

30,216 

Jefferson  

29,111 

DeWitt  

18,906 

Wayne  

25,697 

Piatt  

16,376 

Edwards 

10,049 

Douglas  

19,591 

Wabash  

14,913 

Champaign  . . . 

51,829 

White  

23,052 

Vermilion  .... 

77,996 

Hamilton  

18,227 

McLean  

68,008 

Franklin  

25,943 

Ford  

17,096 

Perry  

22,088 

Iroquois  

35,543 

Randolph  

29,120 

Coles  

34,517 

Monroe  

13,508 

Edgar  

27,336 

Jackson  

35,143 

Moultrie 

14,630 

Williamson  

45,098 

Livingston  . . . 

40,465 

Saline  

30,204 

Tazewell  

34,027 

Gallatin  

14,628 

Hardin  

7,015 

631,746 

Pope  

11,215 

Union  

21,856 

Fourth  District 

Johnson  

14,331 

Fulton 

49,549 

Alexander  

22,741 

McDonough  . . . 

26,887 

Pulaski  

15,650 

Hancock 

30  638 

Massac  

14,200 

Schuyler  

14’,  852 

Brown  

10,397 

605,250 

Adams  

64,588 

Second  District. 

Mason  

17,377 

Madison  

89,847 

Menard  

12,796 

Bond  

17,075 

Morgan  

34,420 

Marion  

35,094 

Cass 

17,372 

Clay  

18,661 

Rock  Island  . . 

70,404 

Richland  

15,970 

Mercer  

19,723 

Lawrence  

22,661 

Warren  

23,313 

Crawford  

26,281 

Henderson  . . . . 

9,724 

Jasper  

18,157 

Effingham  

20,055 

402,040 

Fayette 

28,075 

Montgomery  

35,311 

Fifth  District. 

Macoupin  

50,685 

Knox  

46,159 

Shelby  

31,693 

Henry  

41,736 

Cumberland  

14,281 

Stark  

10,098 

Clarke  

23,517 

Peoria  

. 100,255 

Greene  

22,363 

Marshall  

15,679 

Jersey  

13,954 

Putnam  

7,561 

Calhoun  

8,610 

Bureau  

43,975 

Christian  

34,594 

La  Salle 

Pike  

28,622 

Grundy  

24,162 

Scott  

10,067 

Woodford  

20,506 

565,573 


400,263 


886 


1 ABLE  1. — Population  of  Supreme  Court  Districts — Concluded. 


Sixth  District. 


Whiteside  34,507 

Carroll  18,035 

Jo  Daviess  22,657 

Stephenson  36,821 

Winnebago  63,153 

Boone  15,481 

McHenry  32,509 

Kane  91,862 

Kendall  10,777 

DeKalb  33,457 

Lee  27,750 

Ogle  27,864 


414,873 


Seventh  District. 


Lake  

55,058 

Cook  

. 2,405,233 

Will  

84,371 

Kankakee  

40,752 

DuPage  

Recapitulation. 

33,432 

2,618,846 

First  District 

605,250 

Second  District  

565,573 

Third  District  

631,746 

Fourth  District  

402,040 

Fifth  District 

400,263 

Sixth  District  

414,873 

Seventh  District  

5,638,591 

TABLE  2. — Population  of  Appellate  Court  Districts  by  counties. 

First  District. 

Population  Population 

County.  1870.  1910. 

Cook  County  349,966  2,405,233 


Second  District. 


County. 

Boone  

Bureau  . . . 
Carroll 
DeKalb  . . . 
DuPage  . . . 
Grundy 
Henderson 

Henry  

Iroquois 
Jo  Daviess 

Kane  

Kankakee  . 
Kendall  . . . 

Knox  

Lake  

LaSalle 

Lee  

Livingston  . 
Marshall  . . 
McHenry  . . 
Mercer  .... 

Ogle  

Peoria  .... 
Putnam  . . . 
Rock  Island 

Stark  

Stephenson 
Warren  . . . 
Whiteside  . 
Will  


Population 

1870. 

12,942 

34,415 

16,705 

23,265 

16,685 

14,928 

12,582 

35,506 

25.782 
27,820 
39,091 
24,352 
12,399 
39,522 
21,914 
69,792 
27,171 
31,471 
16,956 
23,762 
18,769 
27,492 
47,540 

6,280 

29.783 
10,751 
30,608 
23,174 
27,503 
43,013 


F Dpulation 
1910. 
15,481 
43,975 
18,035 
33,457 
33,432 
24,162 
9,724 
41,736 
35,543 
22,657 
91,862 
40,752 
10,777 
46,159 
55,058 
90,132 
27,750 
40,465 
15,679 
32,509 
19,723 
27,864 
100,255 
7,561 
70,404 
10,098 
36,821 
23,313 
34,507 
84,371 


887 


TABLE  2. — Population  of  Appellate  Court  Districts — Continued. 

Second  District. 

Population  Population 
1870.  1910. 


Winnebago  29,301  63.153 

Woodford  18,956  20,506 


Third.  District. 


County. 

Adams  

Brown  

Calhoun  

Cass  

Champaign  

Christian 

Clarke  

Coles  

Cumberland  

DeWitt  

Douglas  

Edgar  

Ford  

Fulton  

Greene  

Hancock  

Jersey  

Logan  

Macon  

Macoupin  

Mason 

McDonough  

McLean  

Menard  

Montgomery  

Morgan  

Moultrie 

Piatt  

Pike  

Sangamon  

Schuyler  

Scott 

Shelby  

Tazewell  

Vermilion  


Fourth  District. 


County. 

Alexander  

Bond  

Clay  

Clinton  

Crawford  

Edwards  

Effingham  

Fayette  

Franklin  


840,220 


Population 

1870. 

56.362 
12,205 

6,562 

11,580 

32,737 

20.363 
18,719 
25,535 
12,223 

14.768 
13,484 
21,450 

9,103 

38,291 

20,277 

35,935 

15,054 

23,053 

26,481 

32,726 

16,194 

26,509 

53,988 

11,735 

25,314 

28,463 

10,385 

10,953 

30.768 
46,352 
17,419 
10,530 
25,476 
27,903 
30,388 


819,285 


Population 

1870. 

10,544 

13,152 

15,875 

16,285 

13,889 

7,565 

15,653 

19,638 

12,652 


1,227,921 


Population 

1910 

64,588 

10,397 

8,610 

17,372 

51,829 

34,594 

23.517 

34.517 
14,281 
18,906 
19,591 
27,336 
17,096 
49,549 

22,363 
30,638 
13,954 
30,216 
54,186 
50,685 
17,377 
26,887 
68,008 
12,796 
35,311 
34,420 
14,630 
16,376 
28,622 
91,024 
14,852 
10,067 
31,693 
34,027 
77,996 


1,108,311 


Population 

1910 

22,741 

17.075 
18,661 
22,832 
26,281 
10,049 
20,055 

28.075 
25,943 


888 


TABLE  2. — Population  of  Appellate  Court  Districts — Concluded. 


Fourth  District. 


Gallatin  . . 
Hamilton  . 
Hardin  . . . 
Jackson  . . . 
Jasper 
Jefferson  . . 
Johnson  . . . 
Lawrence  . 
Madison  . . 
Marion  . . . 
Massac 
Monroe  . . . 

Perry  

Pope  

Pulaski  . . . 
Randolph  . 
Richland  . . 
Saline  .... 
St.  Clair  . . 

Union  

Wabash  . . . 
Washington 
Wayne 

White  

Williamson 


Recapitulation. 

First  District  

Second  District  

Third  District  

Fourth  District  


Population 
1870. 
11,134 
13,014 
5,113 
19,634 
11,238 
17,864 
11,248 
12,533 
44,131 
20,622 
9, '581 
12,982 
13,723 
11,437 
8,752 
20,859 
12,803 
12,714 
51,068 
17,518 
8,841 
17,599 
10,758 
16,846 
17,329 


534,594 

1870. 

349,966 

840,220 

819,285 

534,594 


2,544,065 


Population 

1910. 

14,628 

18,227 

7,015 

35,143 

18,157 

29,111 

14,331 

22,661 

89,847 

35,094 

14,200 

13,508 

22,088 

11,21F 

15,650 

29,120 

15,970 

30,204 

119,870 

21,856 

14,913 

18,759 

25,697 

23,052 

45,098 


897,126 


1910. 
2,405,233 
1,227,921 
i, 108, 311 
897,126 


5,638,591 


TABLE  3.  Population  of  Judicial  Circuits  by  Counties  in  the  Years 

1890  and  1910. 


County. 


First  Circuit. 


1890.  1910. 


Alexander  16,563  22,741 

Jackson  27,809  35,143 

Johnson  15,013  14,331 

Massac  11,313  14,200 

Pope  14,016  11,215 

Pulaski  11,355  15,650 

Saline  19,342  30,204 

Union  21,549  21,856 

Williamson  22,226  45,098 


Total 


159,186 


210,438 


889 


TABLE  3. — Population  of  Judicial  Circuits — Continued. 

Second  Circuit. 

County.  1890.  1910. 

Crawford  17,283  26,281 

Edwards  9,444  10,049 

Franklin  17,138  25,943 

Gallatin  .' 14,935  14,628 

Hamilton  17,800  18,227 

Hardin  7,234  7,015 

Jefferson  22,590  29,111 

Lawrence  14,693  22,661 

Richland  15,019  15,970 

Wabash  11,866  14,913 

Wayne  23,806  25,697 

White  25,005  23,052 


Total  196,813  233,547 

Third  Circuit. 

Bond  14,550  17,075 

Madison  51,535  89,847 

Monroe  12,948  13,508 

Perry  17,529  22,088 

Randolph  25,049  29,120 

St.  Clair 66,571  119,870 

Washington  19,262  18,759 


Total  207,444  310,267 

Fourth  Circuit. 

Christian  30,531  34,594 

Clay  16,772  18,661 

Clinton  17,411  22,832 

Effingham  19,358  20,055 

Fayette  23,367  28,075 

Jasper  18,188  18,157 

Marion  24,341  35,094 

Montgomery  30,003  35,311 

Shelby  31,191  31,693 


Total  211,162  244,472 

Fifth  Circuit. 

Coles  30,093  34,517 

Clark  21,899  23,517 

Cumberland  15,443  14,281 

Edgar  26,787  27,336 

Vermilion  49,905  77,996 


Total  144,127  177,647 

Sixth  Circuit. 

Champaign  42,159  51,829 

DeWitt 17,011  18,906 

Douglas  17,669  19,591 

Macon  38,083  54,186 

Moultrie  14,481  14,630 

Piatt  17,062  16,375 


Total  146,465  175,518 


890 


TABLE  3. — Population  of  Judicial  Circuits — Continued. 

Seventh  Circuit. 

County.  1890.  1910. 

Greene  23,791  22,363 

Jersey 14,810  13,954 

Macoupin  40,380  50,685 

Morgan  32,636  34,420 

Sangamon  61,195  91,024 

Scott  10,304  10,067 


Total  183,116  222,513 

Eighth  Circuit. 

Adams  61,888  64,588 

Brown  11,951  10,397 

Calhoun  7,652  8,610 

Cass  15,963  17,372 

Mason  16,067  17,377 

Menard  13,120  12,796 

Pike  31,000  28,622 

Schuyler  16,013  14,852 


Total  173,654  174,614 

Ninth  Circuit. 

Fulton  43,110  49,549 

Hancock  31,907  30,638 

Henderson  9,876  9,724 

Knox  38,752  46,159 

McDonough  27,467  26,887 

Warren  21,281  23,313 


Total  172,393  186,270 

Tenth  Circuit. 

Marshall  13,653  15,679 

Peoria 70,378  100,255 

Putman  4,730  7,561 

Stark  9,982  10,098 

Tazewell  J9,556  34,027 


Total  128,299  167,620 

Eleventh  Circuit. 

Ford  17,035  17,096 

Livingston  38,455  40,465 

Logan  25,489  30,216 

McLean  63,036  68,008 

Woodford  21,429  20,506 


Total 165,444  176,291 

Twelfth  Circuit. 

Iroquois  35,167  35,543 

Kankakee  28,732  40,752 

Will  62,007  84,371 


Total  125,906  160,666 


891 


TABLE  3. — Population  of  Judicial  Circuits — Concluded. 


Thirteenth  Circuit. 

County.  1890.  1910. 

Bureau  35,014  43,975 

Grundy  21,024  24,162 

LaSalle  80,798  90,132 


Total  136,836  158,269 

Fourteenth  Circuit. 

Henry 33,338  41,736 

Mercer  18,545  19,723 

Rock  Island  >. 41,917  70,404 

Whiteside  30,854  34,507 


Total  124,654  166,370 

Fifteenth  Circuit. 

Carroll  18,320  18,035 

Jo  Daviess  25,101  22,657 

Lee  26,187  27,750 

Ogle  28,710  27,864 

Stephenson  31,338  36,821 


Total  129,656  133,127 

Sixteenth  Circuit. 

DeKalb  27,066  33,457 

DuPage  22,551  33,432 

Kane  65,061  91,862 

Kendall  12,106  10,777 


Total  126,784  169,528 

Seventeenth  Circuit. 

Boone  12,203  15,481 

Lake  24,235  55,058 

McHenry  26,114  32,509 

Winnebago  39,938  63,153 


Total  102,490  166,201 

Cook  1,191,922  2,405,233 

Recapitulation. 

No.  of  Circuit.  1890.  1910. 

1 159,186  210,438 

2 196,813  233,547 

3 207,444  310,267 

4 211,162  244,472 

5 144,127  177,647 

6 146,465  175,518 

7 183,116  222,513 

8 173,654  174,614 

9 172,393  186,270 

10  128,299  167,620 

11  165,444  176,291 

12  125,906  160,666 

13  136,836  158,269 

14  124,654  166,370 

15  129,656  133,127 

16  126,784  169,528 

17  102,490  166,201 

Cook  County  1,191,922  2,405,233 


Total  3,826,351  5,638,591 


892 


TABLE  4.  Statement  Showing  Area  and  Population  of  the  Counties 
of  Illinois,  Together  with  Salaries  of  State's  Attorneys  and 
County  and  Probate  Judges. 


Area 

Popu- 

Salary  of 

Salary  of 
County 

Salary  of 
Probate 

County. 

Sq.  Miles. 

lation.1 

State’s  Atty. 

Judge. 

Judge. 

842 

64,588 

22,741 

$ 5,000.00 
2,500.00 

$ 2,500.00 

1,500.00 

Alexander  

226 

388 

17,075 

15,481 

10,397 

43,975 

8,610 

18,035 

17,372 

51,829 

2,100.00 

1.900.00 

1.400.00 

3.900.00 

1.300.00 

2.200.00 
2,100.00 
5,000.00 

700.00 

293 

1.500.00 
1,000.00 

2.500.00 
400.00 

297 

881 

256 

453 

1,250.00 

2,000.00 

3,000.00 

371 

Champaign  

...  1,043 

Christian  

700 

34,594 

3,900.00 

1,700.00 

493 

23,517 

18,661 

2.500.00 

2.300.00 

2.500.00 

3.900.00 
12,000.00 

1,200.00 

900.00 

Clay  

462 

483 

22,832 

34,517 

2,405,233 

1,000.00 

1,500.00 

10,000.00 

525 

Cook  

933 

$10,000.00 

Crawford  

453 

26,281 

2,500.00 

1,500.00 

Cumberland  

353 

14,281 

1,800.00 

800.00 

DeKalb  

638 

33,457 

3,900.00 

2,350.00 

DeWitt  

415 

18,906 

19,591 

33,432 

27,336 

10,049 

20,055 

2,300.00 

1,500.00 

1.500.00 

2.400.00 
2,000.00 

600.00 

417 

2.400.00 

3.900.00 

345 

621 

2.500.00 

1.400.00 

2.400.00 

238 

Effingham  

511 

1,000.00 

729 

28,075 

17,096 

25,943 

49,549 

14,628 

22,363 

2.500.00 

2.100.00 

2.500.00 

3.900.00 

1.900.00 

2.500.00 

1.500.00 

1.200.00 
1,200.00 
2,500.00 

720.00 

Eord  

500 

445 

Fulton  

884 

Gallatin  

338 

Greene  

515 

1.500.00 

1.600.00 
900.00 

Grundy 

433 

24,162 

18,227 

2.500.00 

2.200.00 

Hamilton  

455 

Ha.nnork  

780 

30,638 

7,015 

9,724 

3.900.00 

1.100.00 
1,400.00 

1,800.00 

300.00 

Hardin  

185 

Henderson  

376 

1,400.00 

Henry  

824 

41,736 

35,543 

3,900.00 

3,900.00 

3.900.00 

2.200.00 

2.500.00 

1.800.00 
2,500.00 

2,200.00 

2.500.00 

1.500.00 
1,000.00 

1.100.00 
1,400.00 
1,400.00 

Iroquois  

1,121 

Jackson  

588 

35,143 

18,157 

29,111 

13,954 

22,657 

Jasper  

508 

Jefferson  . 

603 

Jersey  

367 

Jo  Daviess  

623 

Johnson  

348 

14,331 

91,862 

1,800.00 

5,000.00 

600.00 

Kane  

527 

3,000.00 

2,350.00 

Kankakee  

668 

40,752 

3,900.00 

2,400.00 

Kendall  

324 

10,777 

46,159 

55,058 

1.500.00 

3.900.00 
5,000.00 
5,000.00 

1.500.00 

2.500.00 
3,000.00 
2,500.00 

Knox  

711 

Lake  

455 

La  Salle  : 

1,146 

90,132 

3,500:00 

Lawrence  

22,661 

2,500.00 

1,350.00 

Lee  

742 

27,750 

40,465 

2.500.00 

3.900.00 

2,000.00 

2,500.00 

Livingston  

. . . 1,043 

Logan  

617 

30,216 

26,887 

3.900.00 

2.500.00 

2,000.00 

1,800.00 

McDonough  

588 

McHenry  

620 

32,509 

3,900.00 

2,500.00 

McLean  

1,191 

68,008 

54,186 

50,685 

5,000.00 

5,000.00 

3,900.00 

2.700.00 
3,000.00 

1.500.00 

Macon  

585 

Macoupin  

860 

Madison  

737 

89,847 

5,000.00 

2,200.00 

2,200.00 

Marion  . 

569 

35,094 

15,679 

17,377 

14,200 

12,796 

19,723 

13,508 

35,311 

3.900.00 
2,000.00 

2.100.00 
1,800.00 

1,800.00 

1.400.00 

1.500.00 
900.00 

Marshall  

396 

Mason  

555 

Massac  

240 

Menard  

317 

1.700.00 

2.400.00 

1.800.00 
3,900.00 

1,000.00 

2,000.00 

1,200.00 

1,750.00 

Mercer  

540 

Monroe  

389 

Montgomery  

689 

Morgan  

576 

34,420 

14.630 

3.900.00 

1.900.00 

2.400.00 

1.200.00 
3,000.00 

Moultrie  

338 

Ogle  

756 

27,864 

2,500.00 

893 


TABLE  4. — Area  and  Population  of  Counties  with  Salaries  of  State's 
Attorneys,  County  and  Prohate  Judges — Concluded. 


Area 

County.  Sq.  Miles. 

Peoria  636 

Perry  451 

Piatt  451 

Pike  786 

Pope  385 

Pulaski  190 

Putnam  173 

Randolph  587 

Richland  357 

Rock  Island  424 

St.  Clair  663 

Saline  399 

Sangamon  876 

Schuyler  432 

Scott  249 

Shelby  772 

Stark  290 

Stephenson  559 

Tazewell  647 

Union  403 

Vermilion  921 

Wabash  220 

Warren  546 

Washington  561 

Wayne  733 

White  507 

Whiteside  679 

Will  844 

Williamson 449 

Winnebago  529 

Woodford 528 


Total  56.043 


Salary  of 

Popu- 

Salary of 

County 

lation.1 

State’s  Atty. 

Judge. 

100,255 

6,400.00 

3,000.00 

22,088 

2,500.00 

1,200.00 

16,376 

2,000.00 

1,500.00 

28,622 

2,500.00 

1,700.00 

11,215 

1,500.00 

800.00 

15,650 

2,000.00 

1,200.00 

7,561 

1,200.00 

500.00 

29,120 

2,500.00 

1,600.00 

15,970 

2,000.00 

1,000.00 

70,404 

5,000.00 

3,000.00 

119,870 

6,400.00 

2,500.00 

3(1,204 

3,900.00 

1,800.00 

91,024 

5,000.00 

3,500.00 

14,852 

1,900.00 

1,100.00 

10,067 

1,400.00 

1,000.00 

31,693 

3,900.00 

2,250.00 

10,098 

1,400.00 

1,500.00 

36,821 

3,900.00 

1,800.00 

34,027 

3,900.00 

2,000.00 

21,856 

2,500.00 

1,200.00 

77,996 

5,000.00 

3,000.00 

14,913 

1,900.00 

700.00 

23,313 

2,500.00 

1,900.00 

18,759 

2,300.00 

1,200.00 

25,697 

2,500.00 

1,200.00 

23,052 

2,500.00 

1.000.00 

34,507 

3,900.00 

2,500.00 

84,371 

5,000.00 

3,500.00 

45,098 

3,900.00 

1,800.00 

63,153 

5,000.00 

3,000.00 

20,506 

2,500.00 

1,800.00 

5,638,533 

315,700.00 

182,970.00 

Salary  of 
Probate 
Judge. 
3,000.00 


2.500.00 

2.250.00 


3,500.00 


3.000.00 


3,500.00 


35,700.00 


1 Census  of  1910. 


TABLE  5.  City  Courts. 


Population1 

Name  of  City  Court.  of  city  (1910). 

Alton  17,528 

Aurora  29,807 

Beardstown  6,107 

Benton  2,675 

Canton  10,453 

Carbondale  5,411 

Charleston  5,884 

Chicago  Heights  . . 14,525 

De  Kalb 8,102 

DuQuoin  5,454 

East  St.  Louis2 .* 58,547 


Year  of 
organi- 
zation of 
court. 
1859 
1857 
1911 

1915 
1889 

1916 
1906 
1903 
1911 
1909 
1874 


Elgin  

Granite  City 
Harrisburg  . 

Herrin  

Johnson  City 
Kewanee  . . . 
Litchfield  . . . 
Macomb 

Marion  

Mattoon  . . . . 


25,976  1857 

9,903  1910 

5,309  1910 

6,861  1910 

3,248  1915 

9,307  1909 

5,971  1898 

5,774  1910 

7,093  1910 

11,456  1898 


Salary 
of  Judge. 
$3,000.00 

3.000. 00 
1,500.00 
1,500.00 

2.000. 00 
1,500.00 
1,500.00 
2,000.00 
2,000.00 
1,500.00 

4.000. 00 
(2  judges) 

3.000. 00 

2.000. 00 
1,500.00 
2,000.00 
1,500.00 
2,000.00 
1,500.00 
1,500.00 
1,500.00 
2,000.00 


1 The  figures  here  given  are  of  the  1910  census.  The  population  of  many 
of  these  cities,  particularly  those  in  mining  regions,  has  increased  rapidly 
since  that  time.  This  fact  explains  the  disproportion  between  the  population 
figures  and  the  salaries  of  the  judges. 

2 The  city  court  at  East  St.  Louis  has  two  judges. 


894 


TABLE  o. — City  Courts — Concluded. 


Name  of  City  Court. 

Moline  

Pana  

Spring  Valley  

Sterling  

West  Frankfort  

Zion3  


Population1 

Year  of 
organi- 
zation of 

Salary 

)f  city  (1910). 

court. 

of  Judge. 

24,199 

1915 

3,000.00 

6,055 

1906 

1,500.00 

7,035 

1912 

1,500.00 

7,467 

1910 

1,500.00 

2,111 

1915 

2,000.00 

4,789 

1903 

500.00 

Total 


$56,000.00 


3 The  salary  of  the  judge  of  the  city  court  at  Zion  City  is  paid  from  the 
city  treasury;  that  of  all  other  city  judges  is  paid  from  the  state  treasury. 


TABLE  6.  Service  of  down-state  Judges  in  Cook  County. 

(a)  Extent  of  Service  of  Down-State  Judges  in  the  Superior  Court  of  CooM 
County  During  the  Years  1915 , 1916,  1917,  1918  and  1919. 


1915 

1916 

1917 

1918 

1919 

No. 

No. 

No. 

No. 

No. 

of 

of 

of 

of 

of 

Judge. 

Court. 

days. 

days. 

days. 

days. 

days. 

H.  Sterling  Pomeroy.  . 

. City 

Court  Kewanee. 

. 157 

99 

Mazzini  Slusser 

. ,16th 

Circuit  

85 

69 

*3i 

*ii 

Clinton  F.  Irwin 

. ,16th 

Circuit  

78 

82 

55 

33 

Harry  G.  Moran 

. .City 

Court  Canton.  . . 

65 

Samuel  C.  Stough..... 

. .13  th 

Circuit  

! 'is 

47 

48 

*32 

Oscar  E.  Heard 

. ,15th 

Circuit  

32 

86 

James  S.  Baume 

. ,15th 

Circuit  

29 

’ 'i 

E.  M.  Mangan 

Court  Aurora.  . . 

70 

F.  E.  Shopen 

. -City 

Court  Elgin . . . . 

22 

John  A.  Dowdall 

. .City 

Court  DeKalb.  . 

7 

Total  

. 469 

477 

135 

76 

(b)  Extent  of  Service  of  Down-State  Judges  in  the  Circuit  Court  of  Chicago 
During  the  Years  1916,  1917,  1918  and  1919. 


1916 

1917 

1918 

1919 

No. 

No. 

No. 

No. 

of 

of 

of 

of 

Judge. 

Court. 

days. 

days. 

days. 

days. 

James  S.  Baume.  . . . 

44 

6 

. . . 

B.  S.  Bell 

....Probate  Court  Rock  Island. 

11 

Louis  Bernreuter.  . . . 

' 12 

C.  H.  Bowles 

142 

163 

*40 

H.  R.  Dial 

....City  Court  West  Frankfort. 

.*  *27 

J.  C.  Eagleton 

2nd  Circuit  

*i6 

*32 

Dean  Franklin 

. . . .City  Court  Macomb 

. ioo 

26 

D.  T.  Hartwell 

. . . . 1st  Circuit  

22 

*i3 

* ' i 

Oscar  E.  Heard 

15th  Circuit  

47 

67 

76 

70 

C.  F.  Irwin 

16th  Circuit 

35 

D.  W.  Maddox 

. . . . City  Court  Litchfield 

40 

E.  M.  Mangan 

. . . .City  Court  Aurora 

4 

*60 

140 

142 

J.  H.  Marshall 

8 

22 

23 

Chas.  W.  Miller.... 

. . . .2nd  Circuit  

10 

Harry  C.  Moran 

....City  Court  Canton 

*i6 

A.  D.  Morgan 

....City  Court  Herrin 

33 

A.  A.  Partlow 

. . . . 5th  Circuit  

17 

H.  S.  Pomeroy 

....City  Court  Kewanee 

. ioi 

159 

149 

24 

G.  A.  Sentel 

6th  Circuit  

28 

M'.  Slusser 

. . . .16th  Circuit  

43 

Samuel  C.  Stough.  . . . 

. . . . 13th  Circuit  

. 1 

129 

iis 

167 

Sain  Welty 

...,11th  Circuit  

17 

• • • 

TABLE  6. — Service  of  down-state  Judges  in  Cook  County — Concluded. 

(c)  Extent  of  Service  of  Down-State  Judges  in  the  County  Court  of  Cook 
County  From  January  1,  1916  to  March  29,  1919. 


1916 

1917 

1918 

1919 

No. 

No. 

No. 

No. 

of 

of 

of 

of 

Judge. 

Court.  days. 

days. 

days. 

days. 

John  H.  Williams.... 

.Probate  Court  Kane  County.. 

296 

278 

168 

194 

S.  N.  Hoover 

. .County  Court  Kane  County.  . 

211 

212 

130 

164 

John  J.  Cooke 

..City  Court  Beardstown 

157 

185 

266 

148 

David  T.  Smiley 

..County  Court  Lake  County.. 

19 

30 

8 

Arthur  J.  Grady 

. .County  Court  Carroll  County 

12 

• • • 

Roscoe  J.  Carnahan . . 

. .County  Court  Stephenson  Co. 

62 

’i.3 

"3 

William  L.  Pond 

, . County  Court  DeKalb  County 

82 

174 

37 

’l4 

Wm.  C.  DeWolf,  Jr. . . 

..County  Court  Boone  County.. 

14 

. . . 

Benjamin  Bell 

. .County  Court  Rock  Island  Co. 

26 

”5 

A.  D.  Webb 

..County  Court  Jefferson  Co... 

18 

William  E.  Thomson. 

. .County  Court  Morgan  County 

“5 

Harry  C.  Stuttle 

..City  Court  Litchfield 

17 

*23 

S.  L.  Rathje 

. .County  Court  DuPage  County 

• • • 

17 

F.  J.  Campbell 

. County  Court  Jo  Daviess  Co. 

• • • 

19 

A.  L . Spiller 

. .County  Court  Jackson  County 

17 

A.  J.  Steidley 

..County  Court  Shelby  County. 

5 

James  H.  Ragsdale  . 

. .County  Court  Montgomery  Co. 

12 

Harry  C.  Moran 

. .City  Court  Canton 

22 

Totals  . . . 

879 

915 

634 

635 

(d)  Extent  of  Service  of  Down-State  Judges  in  the  Municipal  Court  of  Chi- 
cago During  the  Years  1916,  1917,  1918  and  1919. 


1916 

1917 

1918 

1919 

No. 

No. 

No. 

No. 

of 

Of 

of 

of 

Judge. 

Court.  days. 

days. 

days. 

days. 

Chas.  H.  Bowles.... 

. . .City  Court  Chicago  Heights.  . 

194 

11 

F.  J.  Campbell 

. . .County  Judge,  Jo  Daviess  Co. 

16 

27 

*76 

*58 

Frederick  C.  Hill 

...County  Judge,  DeWitt  Co... 

85 

5 

Harry  C.  Moran 

. . .City  Court,  Canton 

118 

55 

*74 

iii 

Perry  L.  Person 

...County  Judge,  Lake  County. 

20 

2 

• • • 

3 

Rufus  F.  Robinson... 

....County  Judge,  Henderson  Co. 

131 

88 

6 

P.  C.  Walters 

. . . County  Judge,  Edwards  Co. . . 

93 

D.  H.  Wamsley 

. . . County  Judge,  Douglas  Co. . . . 

27 

*5i 

**5 

Nels  A.  Larson 

. . .County  Judge  Rock  Island  Co. 

28 

• • . 

*23 

Harry  C.  McEwen.  . . 

. . . City  Court,  DeKalb 

30 

J.  B.  Crabtree 

...County  Judge,  Lee  County... 

*i6 

F.  E.  Reed 

. . .County  Judge,  Ogle  County.  . 

21 

W.  H.  Orr 

. . .County  Judge,  Hammond  Co. 

34 

T.  A.  Graham 

. . . County  Judge,  Vermilion  Co. 

6 

Totals  

684 

297 

161 

292 

TABLE  7.  Summary  of  Work  of  Appellate  Courts,  1910-1918,  Based 
on  Analysis  of  Appellate  Court  Reports. 


Vols.  152  to  212.  inclusive. 
Action  by  Appellate  Courts. 


Other- 
wise dis- 
posed 


1910-1918. 

Affirmed. 

Reversed. 

of 

Cases 

coming  from  Municipal  Court  of  Chicago.  . 

2,026 

1,009 

29 

Cases 

coming  from  County  Courts 

282 

225 

14 

Cases 

coming  from  Probate  Courts 

4 

Cases 

coming  from  City  Courts 

150 

153 

*3 

Cases 

coming  from  Circuit  Courts 

2,826 

1,792 

87 

Cases 

coming  from  Superior  Court  of  Cook  County 

846 

501 

27 

Cases 

coming  from  Criminal  Court  of  Cook  Co..  . . 

29 

12 

1 

Totals  10,016*  

6,163 

3,692 

161 

896 


TABLE  7. — Work  of  Appellate  Courts — Concluded. 

Total  cases  by  appellate  districts: 


First  District  6,231 

Second  District  1,264 

Third  District  1,438 

Fourth  District  1,075 


*10,008 


a The  discrepancy  in  totals  is  due  to  an  error  in  analyzing  the  cases  by 
districts. 


TABLE  8.  Analysis  of  Work  of  the  Illinois  Supreme  Court , Based 
on  Examination  of  Supreme  Court  Reports , Vols.  243  to  289. 


(a) 


Recapitulation. 

1910 

1911 

1 1912 

1913 

1914 

1915 

1916 

1917 

1918 

1919 

Tota 

Opinions  filed: 

Original  Jurisdiction 

11 

8 

14 

6 

13 

8 

20 

12 

13 

6 

lit 

Appeals  direct  from  Trial  Courts 

273 

304 

293 

280 

312 

308 

342 

380 

271 

213 

2,976 

Appeals  from  Appellate  Courts 

77 

66 

65 

83 

90 

76 

85 

92 

89 

69 

792 

Total 

361 

378 

372 

369 

415 

392 

447 

484 

373 

288 

3,879 

Total  cases  filed 

555 

517 

644 

608 

605 

637 

677 

701 

628 

600 

6,172 

Total  cases  filed  during  calender  years  1910-1919 6,172 

Petitions  for  certiorari  denied  and  pending 1,191 

Balance 4,981 

Opinions  filed  during  calendar  years  1910-1919  and  analysed 3,879 

Balance  unaccounted  for  on  basis  of  printed  reports l,  102 

Per  cent 22.1 


(b) 


ORIGINAL.  PROCEEDINGS 
In  the  Supreme  Court. 

1910 

1911 

1912 

1913 

1914 

1915 

1916 

1917 

1918 

1919 

Total 

Habeas  corpus 

1 

1 

2 

1 

1 

6 

Mandamus 

3 

1 1 

10 

2 

” Y 

Y 

11 

5 

8 

2 

56 

Revenue 

4 

5 

3 

1 

i 

1 

2 

2 

1 

20 

Disbarment,  etc 

3 

2 

1 

2 

5 

i 

6 

4 

2 

3 

29 

Total 

11 

8 

14 

6 

13 

8 

20 

12 

13 

6 

111 

(C) 


Table  8.  Analyses  of  Work  of  the  Illinois  Supreme  Court — Continued. 


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Table  8.  Analyses  of  Work  of  the  Illinois  Supreme  Court — Concluded. 


1910 

1911 

1912 

1913 

1914 

1915 

1916 

1917 

1918 

1919 

Total. 

Appeals  and  errors 

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16 

2 

6 

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14 

6 

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15 

3 

2 

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21 

13 

3 

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11 

9 

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7 

8 

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17 

11 

5 

3 

19 

17 

4 

2 

23 

7 

1 

1 

9 

122 

44 

14 

21 

201 

Reversed  

5 

3 

8 

4 

3 

2 

10 

2 

1 

i 

4 

8 

4 

i 

13 

13 

2 

15 

6 

2 

1 

9 

8 

3 

2 

13 

9 

3 

2 

14 

7 

2 

9 

5 

1 

0 

67 

18 

5 

j j 

101 

Other  Disposition... 

1 

1 

i 

i 

2 

3 

2 

2 

0 

Certiorari  allowed; 

Affirmed 

2 

3 

4 

2 

11 

ii 

1 

1 

2 

15 

8 

2 

3 

3 

16 

11 

2 

i 

6 

20 

21 

3 

5 

4 

33 

14 

5 

4 

S3 

15 

4 

2 

1 

22 

18 

3 

4 

1 

26 

8 

4 

i 

2 

15 

12 

3 

4 

2 

21 

120 

30 

29 

23 

202 

Reversed 

2 

1 

1 

2 

6 

8 

6 

2 

4 

20 

9 

1 

5 

1 

16 

17 

3 

1 

21 

7 

1 

1 

2 

11 

9 

6 

1 

16 

10 

4 

4 

18 

12 

1 

3 

3 

19 

26 

1 

4 

2 

33 

20 

1 

4 

2 

27 

120 

12 

33 

22 

187 

Other  disposition 

1 

1 

1 

1 

i 

1 

1 

2 

3 

1 

1 

1 

1 

2 

4 

2 

g 

Constitutional  right  of 

appeal; 

Affirmed 

1 

3 

1 

1 

2 

1 

1 

2 

1 

2 

1 

4 

1 

3 

1 

1 

3 

1 

6 

5 

2 

7 

4 

2 

6 

J 

2 

18 

11 

3 

4 

36 

Reversed 

2 

2 

1 

4 

4 

5 

5 

1 

2 

2 

3 

3 

4 

1 

2 

1 

J 

1 

3 

30 

3 

3 

26 

Other  disposition 

2 

2 

2 

2 

4 

4 

Statutoryappeal  — Prior 

to  certiorari  law; 

Affirmed 

6 

9 

2 

12 

6 

2 

2 

2 

12 

Reversed 

5 

3 

i 

9 

5 

3 

1 

9 

Total 

39 

11 

10 

17 

35 

15 

7 

9 

66 

« 

10 

12 

7 

65 

56 

ii 

6 

10 

83 

62 

10 

9 

9 

90 

41 

17 

14 

4 

76 

49 

15 

11 

10 

85 

58 

16 

9 

9 

92 

63 

14 

6 

6 

89 

47 

8 

10 

4 

69 

486 

127 

94 

85 

792 

(e) 


PETITIONS  FOR  CERTIORARI. 

Number  filed  together  with  their  disposition. 

1910 

1911 

1912 

1913 

1914 

1915 

1916 

1917 

1918 

1919 

Total. 

Allowed. 

Denied. 

Total. 

Allowed. 

Denied. 

Total. 

Allowed. 

Denied. 

Total. 

Allowed. 

Denied. 

Total. 

Allowed. 

Denied. 

Total. 

Allowed. 

Denied. 

Total. 

Allowed. 

Denied. 

Total. 

Allowed. 

Denied. 

Total. 

Allowed. 

Denied. 

Total. 

Allowed. 

Denied. 

Total. 

Allowed. 

Denied. 

Pending. 

Total. 

1st  Appellate  District 

15 

44 

59 

23 

37 

60 

31 

72 

103 

31 

95 

126 

26 

83 

109 

30 

90 

120 

27 

73 

100 

44 

Ill 

155 

38 

67 

105 

31 

67 

98 

296 

739 

2 

1,037 

2d  Appellate  District 

6 

14 

7 

13 

20 

4 

21 

25 

5 

15 

20 

5 

10 

15 

3 

12 

15 

7 

27 

34 

5 

17 

22 

8 

18 

26 

4 

9 

13 

54 

156 

211 

3d  Appellate  District 

6 

6 

12 

5 

17 

22 

6 

28 

34 

4 

12 

16 

8 

25 

33 

9 

15 

24 

6 

16 

22 

9 

23 

32 

10 

17 

27 

7 

25 

32 

70 

184 

1 

255 

157 

4th  Appellate  District 

8 

15 

4 

9 

13 

8 

11 

19 

8 

8 

16 

4 

9 

13 

3 

9 

12 

4 

9 

13 

6 

16 

22 

3 

13 

16 

2 

16 

18 

49 

108 

Total 

34 

72 

106 

39 

76 

115 

49 

132 

181 

48 

130 

178 

43 

127 

170 

45 

126 

171 

44 

125 

169 

64 

167 

231 

59 

115 

174 

44 

117 

161 

469 

1,187 

4 

1,660 

Denied”  includes  petitions  dismissed  and  stricken  from  the  flies. 

Pending”  petitions  are  those  filed  at  the  current  December  Term,  now  in  session.  They  have  not  been  passed  upon  by  the  court. 

Petitions  "Allowed”  on  this  table  do  not  correspond  with  the  numbers  appearing  on  other  tables  for  the  reason  that  the  figures  were  obtained  from  years 
figures  relate  to  the  filing  of  opinions  ultimately  deciding  the  cases. 


in  which  petitions  were  filed,  while  in  other  tables  the 


CONSTITUTIONAL  CONVENTION 


BULLETIN  No.  11 

Local  Governments 


Chicago  and  Cook  County 


Compiled  and  Published  by  the 
LEGISLATIVE  REFERENCE  BUREAU 
Springfield,  Illinois 


[Printed  by  authority  of  the  State  of  Illinois.] 


LEGISLATIVE  REFERENCE  BUREAU. 


Governor  Frank  O.  Lowden,  Chairman. 
Senator  Edward  C.  Curtis,  Grant  Park. 
Senator  Richard  J.  Barr,  Joliet. 
Representative  Edward  J.  Smejkal,  Chicago. 
Representative  William  P.  Holaday,  Danville. 


E.  J.  Verlie,  Secretary. 

W.  F.  Dodd,  in  charge  collection  of  data  for 
constitutional  convention. 


TABLE  OF  CONTENTS. 


Page 

I.  Summary 905 

Local  governments  in  Cook  county 905 

Proposals  for  unification 908- 

City  and  county  consolidation  in  other  states  and  countries . 9091 

II.  Local  governments  in  cook  county 911 

Introduction ». 911 

Cook  County 913 

County  Officers • 914 

Courts  in  Cook  County 910 

Elective  County  Officers 919 

City  of  Chicago 920 

Organization  of  City  Government  921 

Overlapping  Authorities 92$ 

Sanitary  District  of  Chicago 923 

Towns  in  Cook  County 925 

Cities  and  Villages 928 

Park  Districts 930 

School  and  High  School  Districts 932 

Library  Boards 933 

Drainage  Districts  934 

Congressional  and  Legislative  Districts 935 

The  Voter’s  Burden 935 

III  Proposals  for  unification 937 

Constitutional  Convention  of  1870 937 

Constitutional  Amendment  of  1904 938 

Consolidation  Measures 940 

Chicago  Bureau  of  Public  Efficiency  Reports 941 

Defects  of  Present  Arrangements 942 

Benefits  of  Unification 943 

Proposed  Plans 943 

Under  Section  34,  Article  IV 943 

City-County  of  Chicago 944 

Sanitary  District  Area 944 

Problems 945 


CONTENTS — Continued. 

III  Proposals  for  unification — concluded.  page. 

Other  Plans — Proposed  Metropolitan  Court 948 

County  readjustments  outside  of  Chicago 948 

Constitutional  Obstacles 952 

IV  City  and  county  consolidation  in  other  states 

and  countries 955 

New  York  City 955 

Boston,  Suffolk  County  and  Metropolitan  District 958 

Philadelphia  City  and  County 961 

Baltimore  962 

District  of  Columbia 963 

St.  Louis 965 

San  Francisco  City  and  County 968 

City  and  County  of  Denver 970 

City  and  County  of  Honolulu 973 

Other  Consolidation  Provisions  and  Plans — Virginia, 
Michigan,  Minnesota,  Missouri,  California,  Ohio,  etc. . . .973 

County  Boroughs  in  England 976 

German  City-Circles  (Kreis  Stadte) 977 

Swiss  City  Cantons 978 

Paris  and  the  Department  of  the  Seine 978 

V Conclusions 980 

Appendix  No.  1.  References 982 

Appendix  No.  2.  Tables 983 

1.  Assessed  Valuations — 1918 — City  of  Chicago,  Sani- 

tary District  and  Cook  County.  . . 983 

2.  Assessed  Valuation — 1918 — City  of  Chicago 983 

3.  Assessed  Valuation — 1918 — Sanitary  District 984 

4.  Assessed  Valuation-1918 — Cook  County,  Outside  of 

Chicago  985 

5.  Assessed  Valuation — 1.918 — Cook  County  Outside  of 

Sanitary  District 986 

6.  Summary  of  Taxes  Extended — 1918 — Within  Cook 

County  987 

7.  Relation  Between  Taxes  Extended  Within  Cook 

County  and  Those  Within  Sanitary  District  and 
City  of  Chicago — 1918 987 

8.  Taxes  Extended — 1918 — Chicago  by  Towns 988 


CONTENTS— Concluded. 


Appendix  No.  2.  -Tables — concluded.  page. 

9.  Taxes  Extended — 1918 — Country  Towns  of  Cook 

County  990 

10.  Tax  Rates — 1918 — Chicago  and  Certain  Other  Cities 

and  Villages  in  Cook  County 992 

11.  Counties  Adjacent  to  Cook  County — Assessed  Valua- 

tions and  Taxes  Extended — 1918 992  . 

12.  Bonded  Indebtedness  of  Local  Governments  in  Chi- 

cago   993 

Appendix  no.  3.  Article  4,  Section  34  of  Constitution  of  1870. . .994 

f 

Appendix  no.  4.  Proposal  of  Chicago  City  Council 996 


I.  SUMMARY. 


This  pamphlet  deals  with  the  problem  of  local  government  in 
Chicago  and  Cook  County,  with  special  reference  to  proposals  for 
a consolidated  and  simplified  system.  It  includes  a descriptive 
analysis  of  the  present  local  authorities,  a discussion  of  proposals 
for  consolidation  and  constitutional  changes  needed  to  make  this 
possible,  and  a brief  account  of  partially  consolidated  arrangements 
in  other  places. 

Other  governmental  problems  of  special  importance  to  Chi- 
cago and  Cook  County  will  be  considered  in  other  pamphlets : 
the  question  of  representation  in  the  general  assembly  in  the 
pamphlet  on  the  Legislative  Department;  the  Cook  County  courts 
in  the  pamphlet  on  the  Judicial  Department.  Pamphlets  on  munici- 
pal home  rule  and  local  government  will  also  present  general  prob- 
lems which  will  affect  Chicago  and  Cook  County  as  well  as  other 
parts  of  the  state. 


Local  Governments  in  Cook  County.  The  local  governments 
of  Chicago  and  Cook  County  present,  not  only  the  most  important 
group  of  local  governments  in  Illinois,  but  also  probably  the  most 
complex  array  of  local  authorities  in  the  world.  Within  the  city 
of  Chicago  there  are  38  distinct  local  governments;  and  in  the 
county  as  a whole  there  are  392  separate  agencies  of  local  govern- 
ment. 

Cook  County  was  established  in  1831.  Chicago  was  incor- 
porated as  a town  in  1833,  and  as  a city  in  1837 ; and  its  area  has 
been  increased  from  time  to  time  by  annexation.  After  1840,  school 
districts  were  formed ; and  after  1849  townships.  Other 
municipalities  were  incorporated,  at  first  slowly,  but  more 
rapidly  after  1860.  Altogether  about  90  incorporated  towns, 
villages  and  cities  have  been  established  in  Cook  County, 
some  of  which  have  been  absorbed  by  annexation.  Since 
1869,  additional  park,  high  school  and  drainage  districts,  library 
boards,  the  sanitary  district,  and  the  forest  preserve  district  have 
been  established. 

As  first  organized,  county  affairs  in  Cook  County  were  managed 
by  an  elected  board  of  three  county  commissioners,  a sheriff  and 
a coroner.  Other  county  officers  were  appointed ; but  later  some 
of  these  were  made  elective.  Under  the  constitution  of  1848,  the 
number  of  elective  county  officers  was  increased;  and  after  the 
adoption  of  township  organization  a board  of  supervisors  was 
established.  This  consisted  at  first  of  39  members,  15  of  whom 


906 


were  elected  by  the  towrfs  in  Chicago.  By  1870  the  county  board 
consisted  of  54  members,  20  elected  by  wards  from  the  city  of 
Chicago,  which  had  about  seven-eighths  of  the  population. 

The  constitution  of  1870  provided  for  a board  of  county  com- 
missioners for  Cook  County,  10  elected  from  Chicago  and  5 from 
the  rest  of  the  county.  The  powers  of  this  board  are  restricted  by 
constitutional  and  statutory  provisions  as  to  other  elective  county 
officers,  and  there  is  no  central  controlling  or  co-ordinating  author- 
ity for  the  county  government  as  a whole.  By  statute,  the  presi- 
dent of  the  board  has  a veto  power  and  some  power  of  appointment. 
The  board  of  county  commissioners  also  acts  as  a board  of  forest 
preserve  commissioners. 

The  number  of  elective  county  officers  was  increased  by  the 
constitution  of  1870,  which  also  contained  provisions  for  a series 
of  special  courts  in  Cook  County.  The  number  of  judges  in  these 
courts  has  been  increased  from  time  to  time ; an  appellate  court 
and  three  branches  have  been  established  in  Cook  County;  and  in 
1905  a municipal  court  for  Chicago. 

There  are  now  79  elective  officers  for  Cook  County,  including 
40  judges  of  the  circuit  and  supreme  courts,  15  county  commis- 
sioners, court  clerks  and  other  county  officers.  The  total  regular 
staff  of  the  county  offices  and  institutions  aggregates  approximate- 
ly 3,000  besides  extra  employes  in  the  assessment  and  collection 
of  taxes. 

Municipal  government  in  Chicago  was  carried  on  for  forty 
years  under  special  charters  granted  by  the  general  assembly,  and 
frequently  amended.  In  1875  the  city  voted  to  adopt  the  cities 
and  villages  act  of  1872.  This  has  been  frequently  amended,  and 
a number  of  optional  laws  have  also  been  adopted  by  Chicago. 
Since  the  adoption  of  the  constitutional  amendment  of  1904,  a 
number  of  special  acts  relating  to  Chicago  have  been  passed,  sub- 
ject to  local  referendum. 

The  organization  of  the  city  government  proper  is  compara- 
tively simple.  The  mayor  is  elected  for  a four-year  term,  the  city 
clerk  and  city  treasurer  for  two-year  terms ; there  are  70  aldermen, 
two  elected  from  each  ward  for  two-year  terms.  There  is  also  a 
municipal  court,  with  a chief  justice,  30  associate  justices,  a bailiff 
and  a clerk,  elected  for  six-year  terms.  There  are  106  elective,  city 
officers ; each  voter  may  vote  for  38,  for  a maximum  of  5 at  city 
elections  in  the  spring  and  for  from  10  to  13-  municipal  court 
officers  at  the  November  elections. 

Connected  with  the  city  government  are  several  other  agen- 
cies, largely  independent  ; the  board  of  education  of  11  members, 
the  library  board  of  7 members,  and  the  municipal  tuberculosis 
sanitarium  with  a board  of  3 members.  The  members  of  these 
bodies  are  appointed  by  the  mayor,  subject  to  confirmation  by  the 
council. 

There  are  also  a considerable  number  of  other  local  governing 
bodies  exercising  jurisdiction  within  the  limits  of  the  city.  The 
whole  city  is  within  the  jurisdiction  of  the  county  and  forest  pre- 


907 


serve  district,  and  also  of  the  sanitary  district  of  Chicago.  There 
are  8 towns  entirely  within  the  city,  and  6 others  partly  within 
and  partly  outside.  There  are  3 large  and  14  small  park  districts 
wholly  within  the  city,  and  two  other  park  districts  partly  within 
the  city. 

The  house  of  correction,  the  board  of  election  commissioners 
and  the  boards  of  trustees  for  pension  funds  have  peculiar  and 
special  positions. 

The  sanitary  district  of  Chicago  now  includes  an  area  of  nearly 
400  square  miles,  about  twice  that  of  the  city  of  Chicago,  with  97  per 
cent  of  the  population  and  98  per  cent  of  the  assessed  valuation  of  Cook 
County.  Its  affairs  are  managed  by  a board  of  9 trustees,  3 elected 
every  second  year,  one  of  whom  is  elected  as  President.  The  district  is 
a distinct  municipal  corporation,  with  its  own  taxing  and  borrowing 
powers ; and  during  its  existence  has  expended  a total  of  $100,000,000. 
Of  this  sum,  about  $50,000,000  has  been  expended  for  the  construction 
of  drainage  canals  and  works  and  the  development  of  electric  power. 

Within  the  sanitary  district  and  outside  the  city  of  Chicago,  there 
are  162  separate  taxing  bodies,  including  5 cities,  40  villages,  9 park 
districts,  12  towns  (6  wholly  within  the  district  and  6 partly  within), 
66  school  districts  (47  wholly  within  and  19  partly  within)  10  high 
school  districts,  and  part  of  the  non-high  school  district,  15  library 
boards,  and  4 drainage  districts. 

Of  the  38  towns  in  Cook  County,  8 are  entirely  within  the  city  of 
Chicago ; 10  others  are  entirely  within  the  Sanitary  District ; 9 more 
are  partly  within  and  partly  outside  the  Sanitary  District,  and  eleven 
are  entirely  outside  that  district.  The  towns  wholly  in  Chicago  are  dis- 
tinctively urban  in  character;  the  other  towns  wholly  within  the  Sani- 
tary District  may  be  classed  as  suburban ; of  those  partly  in  and  partly 
outside  of  the  Sanitary  District,  some  are  suburban  and  a few  are 
largely  agricultural ; those  outside  the  Sanitary  District  are  mainly 
agricultural  (except  Bloom  township,  which  includes  the  industrial  city 
of  Chicago  Heights). 

The  8 towns  wholly  within  Chicago  have  practically  no  separate 
town  governments.  Most  of  the  other  towns  elect  the  usual  town  offi- 
cers ; but  there  are  exceptional  arrangements  in  Evanston  and  several 
other  suburban  towns  co-terminous  with  a city  or  village.  Altogether 
there  are  402  elective  town  officers  in  the  county. 

There  are  9 cities,  67  villages  and  2 incorporated  towns  in  Cook 
County,  46  of  these  78  municipalities  being  within  the  Sanitary  Dis- 
trict. Two  cicies  (Harvey  and  Elgin)  and  two  villages  (Forest  Park 
and  Palos  Park)  have  adopted  the  commission  form  of  government. 
The  two  incorporated  towns  (Cicero  and  Palatine)  and  the  village  of 
Winnetka  are  still  operating  under  special  charters,  passed  before  1870. 
The  other  cities  and  villages  are  under  the  general  provisions  of  the 
Cities  and  Villages  Act,  supplemented  in  the  case  of  Chicago  by  some 
special  legislation. 

Excluding  Chicago  and  Elgin  (only  a small  part  of  which  is  in 
Cook  County),  there  are  118  elective  city  officials  and  about  608  elec- 
tive village  officers  in  Cook  County.  Of  these,  88  city  officials  and  352 


908 


village  officers  are  elected  by  municipalities  within  the  Sanitary  Dis- 
trict. 

In  addition  to  the  forest  preserve  district,  comprising  the  whole 
county,  there  are  28  distinct  park  authorities  in  Cook  County,  all  but 
two  of  which  are  within  the  Sanitary  District.  There  are  144  park 
commissioners,  125  of  whom  are  elective  officers.  There  are  wide  va- 
riations in  the  tax  rates  and  revenues  of  these  park  districts ; and  as  a 
result  an  inequitable  distribution  of  park  facilities. 

There  are  180  school  districts  in  Cook  County  outside  of  Chicago. 
Of  these,  47  are  wholly  within  the  Sanitary  District,  19  are  partly  in 
that  district,  and  114  are  entirely  outside.  There  are  15  high  school  dis- 
tricts in  the  county,  and  the  remainder  of  the  county  forms  a non-high 
school  district.  Many  of  the  school  and  high  school  districts  cross 
township  lines.  There  are  altogether  801  elective  district  school  offi- 
cers in  the  county.  School  tax  rates  in  the  suburban  cities  and  villages 
are  much  higher  than  in  Chicago. 

There  are  21  public  libraries  in  Cook  County,  with  a total  of  144 
members  of  the  library  boards.  Of  these,  the  90  members  of  the  15 
village  library  boards  are  elected. 

It  is  difficult  to  obtain  a complete  list  of  drainage  districts,  but  in- 
formation has  been  secured  of  27  such  districts  in  Cook  County.  Four 
of  these  are  within  the  Sanitary  District  of  Chicago. 

In  addition  to  the  local  governments,  there  are  10  congressional 
districts  and  19  senatorial  districts  in  Cook  County,  and  35  wards  in 
the  city  of  Chicago.  These  various  districts  for  election  purposes  do 
not  correspond  with  each  other ; and  add  further  to  the  complexities  of 
the  governmental  situation. 

Combining  the  various  local  districts  with  elective  officers,  there 
is  an  aggregate  of  2557  public  officials  voted  for  in  Cook  County,  of 
which  417  are  voted  for  in  Chicago  and  1640  within  the  Sanitary  Dist- 
rict. Each  male  elector  in  Cook  County  is  expected  to  vote  for  from 
172  to  197  different  officials  in  a brief  series  of  years.  At  the  Nov- 
ember election  in  1916,  each  male  elector  in  Chicago  was  called  on  to 
vote  for  72  officials,  and  in  other  parts  of  the  county  for  61  officials. 


Proposals  for  unification.  Various  plans  for  a more  unified 
system  of  local  government  in  Chicago  have  been  presented  from  time 
to  time.  In  the  constitutional  convention  of  1870,  a provision  author- 
izing any  city  of  over  200,000  population  to  be  organized  into  a sepa- 
rate county  was  at  one  time  agreed  to,  but  was  later  stricken  out,  at  the 
request  of  the  Cook  County  members.  After  1890,  plans  for  consoli- 
dation were  advocated  in  Chicago.  A proposed  constitutional  amend- 
ment for  this  purpose  was  introduced  in  the  general  assembly  of  1899 ; 
and  in  1903  a proposed  amendment  was  submitted  by  the  general  as- 
sembly, and  adopted  by  popular  vote  in  1904  as  Section  34  of  Article 
IV  of  the  constitution.  This  authorized  special  legislation  for  Chi- 
cago, subject  to  a local  referendum,  and  the  consolidation  of  local 
governments  entirely  within  the  city ; but  did  not  provide  for  the  con- 


909 


solidation  of  the  county  or  the  sanitary  district  government  with  the 
city. 

Under  the  amendment  of  1904,  a comprehensive  city  charter  was 
prepared  by  a local  charter  convention  in  Chicago ; but  this  was 
amended  in  important  respects  by  the  general  assembly ; and  the 
amended  charter  was  defeated  at  the  local  referendum.  In  1915  a 
less  comprehensive  consolidation  act  was  passed  by  the  general  as- 
sembly; but  this  also  failed  at  the  local  referendum,  mainly  on  ac- 
count of  temporary  local  political  conditions.  This  act  may  be  again 
submitted  to  local  vote ; but  it  is  only  a partial  solution  of  the  problem. 

In  recent  years  a series  of  reports  on  the  complex  machinery 
of  local  government  in  Chicago  and  plans  for  unification  has  been 
published  by  the  Chicago  Bureau  of  Public  Efficiency.  In  these  the 
defects  of  the  existing  arrangements  have  been  discussed,  including 
useless  overhead  expenses,  enormous  election  costs,  cumbersome  as- 
sessing machinery,  the  cost  of  the  courts,  expensive  law  departments, 
the  purchase  of  supplies  and  materials ; rent,  light  and  telephone  serv- 
ice ; the  advantages  of  park  consolidation ; the  sanitary  district,  and 
other  economies.  The  direct  money  savings  have  been  estimated  at 
$3,200,000  a year ; and  in  addition  more  important  results  could  be 
secured  by  greater  efficiency  and  better  plans  for  future  development. 

Several  alternative  plans  have  been  suggested  as  a basis  for  unifi- 
cation and  consolidation.  In  addition  to  the  partial  measures  possible 
under  the  constitutional  amendment  of  1904,  may  be  noted  proposals 
to  organize  the  city  of  Chicago  as  a separate  county,  or  to  establish 
a consolidated  city  and  county  for  an  area  such  as  that  of  the  sani- 
tary district,  including  most  of  the  suburban  communities  adjacent  to 
the  city.  Under  either  of  these  plans,  the  remainder  of  Cook  County 
might  be  organized  as  one  or  more  new  counties,  or  attached  to  neigh- 
boring counties. 

Any  of  these  plans  will  give  rise  to  a number  of  problems  of 
adjustment  with  the  present  county  of  Cook  and  communities  now 
outside  of  Chicago.  Some  of  these  problems  and  suggested  solutions 
are  considered  in  the  pamphlet.  But  the  problem  for  the  constitu- 
tional convention  will  be,  not  to  solve  the  local  difficulties,  but  to 
frame  constitutional  provisions  under  which  the  local  questions  may 
be  worked  out  by  the  communities  themselves. 

A large  number  of  provisions  in  various  articles  of  the  present 
state  constitution  operate  to  prevent  any  comprehensive  unification  of 
local  government  in  Chicago.  Some  of  these  may  be  removed  by 
changes  made  on  account  of  general  conditions  throughout  the  state. 
But  it  is  probable  that  consideration  will  be  needed  for  provisions 
specially  applicable  to  Chicago  and  Cook  County. 


City-county  consolidation  elsewhere.  In  a number  of  other 
states,  provisions  have  been  made  for  the  consolidation,  to  some  extent, 
of  city  and  county  government  for  large  cities;  and  in  several  Euro- 


910 


pean  countries  there  is  likewise  consolidated  local  governments  for 
larger  cities. 

New  York  City  includes  five  counties.  In  Philadelphia  and  San 
Francisco  the  city  and  county  are  identical  in  area.  Baltimore  and 
St.  Louis  combine  city  and  county  functions.  Boston  includes  most 
of  Suffolk  County.  In  all  of  these  cases,  the  city  government  in- 
cludes some  county  functions  and  absorbs  some  county  officers.  In 
Denver,  city  and  county  government  have  been  more  thoroughly  con- 
solidated. In  the  District  of  Columbia,  a single  government  exercises 
some  of  the  functions  elsewhere  divided  between  the  city,  county  and 
state. 

In  Virginia,  all  cities  are  excluded  from  the  counties;  and  the 
city  government  provides  for  county  functions.  Several  state  con- 
stitutions authorize  the  larger  cities  to  be  organized  as  separate  coun- 
ties ; in  Michigan  and  Missouri,  cities  over  100,000 ; in  Minnesota, 
cities  over  20,000.  The  California  constitution  contains  a general  pro- 
vision authorizing  city  and  county  consolidation,  as  well  as  special 
provisions  for  San  Francisco  and  some  other  counties. 

Plans  for  city-county  consolidation  have  been  actively  urged  in 
recent  years  for  a number  of  larger  American  cities.  Proposed  con- 
stitutional amendments  for  this  purpose  have  been  presented  in  Ohio 
and  Oregon ; and  definite  proposals  have  been  urged  in  Los  Angeles 
and  Alameda  counties,  California. 

In  England,  municipalities  of  over  50,000  population  are  regularly 
organized  as  county  boroughs.  In  Prussia,  most  cities  of  over  25,000 
are  classed  as  Kreis-stadte,  combining  the  functions  of  the  city  and  the 
local  district  known  as  the  circle ; and  there  are  somewhat  similar 
arrangements  in  Bavaria.  Several  Swiss  cantons  are  predominantly 
urban ; and  in  the  Basel-stadt  the  municipal  and  cantonal  functions  are 
combined. 

In  Paris,  the  municipal  government  is  partly  combined  with  that 
of  the  Department  of  the  Seine.  In  that  city,  and  also  in  Vienna,  are 
permanent  administrative  districts  within  the  city,  which  may  suggest 
methods  for  preserving  the  identity  of  local  districts  in  the  suburbs 
of  Chicago. 

In  Appendix  No.  4 will  be  found  a tentative  proposal  prepared 
by  a special  committee  of  the  Chicago  city  council.  It  will  be  noted 
that  this  proposal  relates  primarily  to  municipal  home  rule,  a subject 
dealt  with  in  Bulletin  No.  6 of  this  series.  If  the  policy  of  municipal 
home  rule  is  to  be  adopted,  it  would  probably  be  made  applicable  to 
other  cities  as  well  as  to  Chicago,  although  some  provisions  relating 
specifically  to  Chicago  might  be  necessary.  Under  the  amendment  of 
1904  Chicago  problems  may  now  be  dealt  with  by  special  legislation. 


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911 


II.  LOCAL  GOVERNMENTS  IN  COOK  COUNTY. 


Introduction.  Much  the  most  important  and  most  complex 
array  of  local  governments  in  Illinois  is  that  in  Chicago  and  Cook 
County ; and  it  has  been  said  that  probably  no  other  community  in  the 
world  presents  a more  confusing  complexity.  Within  the  City  of 
Chicago  there  are  no  less  than  38  distinct  local  governments,  most  of 
them  independent  of  one  another.  Outside  of  the  city  and  within  the 
larger  area  of  the  Sanitary  District  of  Chicago  there  are  162  other 
local  governments.  Beyond  the  Sanitary  District  there  are  192  ad- 
ditional local  governments  within  Cook  County.  Upon  the  map  which 
faces  this  page  will  be  found  an  outline  of  the  local  areas  which  are 
most  important  from  the  standpoint  of  the  problem  of  consolidation. 
This  map  is  printed  here  through  the  courtesy  of  the  Chicago  Bureau 
of  Public  Efficiency.  In  the  aggregate  there  are  392  separate  agencies 
of  local  government  in  Cook  County,  as  shown  in  the  table  below : 


Local  Governments  in  Chicago  and  Cook  County. 


Class. 

Within 

Chicago. 

Addi- 
tional in 
Sanitary 
District 
outside 
Chicago. 

Addi- 
tional in 
Cook 
County 
outside 
San.  Dis- 
trict. 

Total  in 
County 
Outside 
Chicago. 

Grand 
Total  in 
County. 

Cook  Countya  

1 

1 

Forest  Preserve  District 

1 

• • • • 

1 

Sanitary  District  of  Chicago... 

1 

1 

Cities  

1 

‘ ' *5 

’ &3 

' i>8 

&9 

Towns  

cl4 

dl3 

ell 

f 24 

38 

Villages  

040 

h29 

469 

469 

Park  Districts  

jri 

Jc9 

2 

fell 

28 

Library  Boards  

i 

15 

15 

120 

121 

School  Districts 

i 

m66 

n 114 

180 

181 

High  School  Districts 

oil 

p 5 

16 

16 

Drainage  Districts  

4 

23 

27 

27 

Municipal  Tuberculosis  Sanitar- 
ium   

i 

1 

Total  

38 

qU2 

192 

355 

qS92 

a — Cook  County  and  the  Forest  Preserve  District,  which  are  co-extensive, 
extend  beyond  the  limits  of  Chicago,  although  not  shown  in  columns  two,  three, 
and  four.  The  area  of  Chicago  is  200  square  miles  ; of  the  Sanitary  District,  390 
square  miles;  and  of  Cook  County,  993  square  miles. 

b — Includes  part  of  Elgin,  which  is  largely  in  Kane  County. 

. c — Eight  wholly  within,  and  6 partly  within  Chicago.  (Three  of  the  latter 
are  partly  outside  the  Sanitary  District). 

d — Includes  6 partly  outside  the  Sanitary  District. 
e — Does  not  include  9 partly  within  the  Sanitary  District. 

/ — Does  not  include  6 partly  within  Chicago. 

g — Includes  5 partly  outside  the  Sanitary  District,  and  Cicero,  which  Is  also 
counted  as  a town. 


912 


i — Includes  Cicero,  which  is  also  counted  as  a town,  and  3 partly  outside 
Cook  County. 

j — Includes  2 partly  outside  Chicago. 

k — Does  not  include  2 partly  in  Chicago. 

I — Includes  2,  (Elgin  and  Hinsdale)  partly  outside  Cook  County. 

m — Includes  19  partly  outside  the  Sanitary  District. 

n — Does  not  include  19  partly  within  the  Sanitary  District. 

o — Includes  4 and  the  non-high  school  district,  which  are  partly  outside  the 
Sanitary  District 

p — Does  not  include  4 and  the  non-high  school  district,  which  are  partly 
within  the  Sanitary  District. 

q — Cicero,  included  both  as  a town  and  a village,  is  counted  only  once  in  the 
totals. 

h — Does  not  include  5 partly  within  the  Sanitary  District ; includes  3 partly 
outside  Cook  County. 

This  table  shows  the  number  of  distinct  governing  and  taxing 
authorities,  each  composed  of  a varying  number  of  officials  and  super- 
vising a larger  number  of  subordinate  officials  and  employees. 

Before  examining  more  closely  this  aggregate  of  existing  local 
agencies,  it  may  be  well  to  note  briefly  some  of  the  principal  steps  in 
their  development. 

Cook  County,  the  oldest  of  the  local  government  agencies,  was  es- 
tablished in  1831.  It  included  at  that  time,  not  only  the  present  area 
of  the  county,  but  also  the  territory  of  Lake  and  Du  Page  Counties,  the 
northern  half  of  Will  County,  and  a small  portion  of  what  is  now  in 
McHenry  County.  In  1836  Will  and  McHenry  counties  were  organ- 
ized, the  latter  including  the  present  area  of  Lake  County ; and  in  1839 
Du  Page  County  was  organized ; and  Cook  County  was  reduced  to  the 
present  limits. 

The  town  of  Chicago  was  incorporated  in  1833  and  four  years 
later  it  received  its  first  city  charter  with  enlarged  limits.  The  area 
of  the  city  has  been  enlarged  from  time  to  time  by  annexations,  at  first 
of  territory  not  previously  incorporated,  but  since  1889*largely  by  the 
absorption  of  neighboring  villages,  several  townships  and  the  city  of 
Lake  View. 

The  school  laws  of  1841  and  1845  had  provided  for  the  formation 
of  school  districts  in  the  townships  outside  of  the  city.  In  1849,  Cook 
County  voted,  with  other  northern  counties,  to  adopt  the  new  system  of 
township  organization.  The  townships  were  superimposed  on  the  for- 
mer governments,  the  city  of  Chicago  falling  within  three  townships. 
Several  new  townships  have  been  organized  within  those  first  estab- 
lished. 

While  Blue  Island  had  been  incorporated  in  1843  and  Evanston  in 
1857,  there  was  little  tendency  to  establish  other  incorporated  muni- 
cipalities until  the  decade  before  1870.  But  by  the  latter  year,  ten  ad- 
ditional suburban  municipalities  had  been  organized,  including  the 
towns  of  Lake  View,  Hyde  Park  and  Jefferson,  and  the  villages  of 
Glencoe  and  Winnetka.  After  1870  the  formation  of  villages  pro- 
ceeded more  rapidly : 10  more  were  organized  before  1880,  and  10 
others  before  1890.  Since  the  latter  date,  the  process  has  been  still 
more  rapid.  26  villages  were  established  from  1890  to  1899,  14  in  the 
following  decade,  and  15  since  1910.  A number  of  other  villages  ap- 
pear to  have  existed  for  which  no  record  is  available.  Altogether  there 
has  been  about  90  incorporated  towns,  villages  and  cities  established 
within  Cook  County. 


913 


The  number  of  cities  and  villages  in  the  county  has  been  some- 
what reduced  by  annexations  to  the  city  of  Chicago.  The  most  im- 
portant case  was  in  1889  when  the  city  of  Lake  View,  the  village  of 
Hyde  Park,  and  the  towns  of  Jefferson  and  Lake  were  annexed,  more 
than  trebling  the  area  of  the  city.  In  addition  about  10  villages  have 
been  annexed  from  time  to  time,  besides  other  territory. 

But  this  has  been  counterbalanced  by  the  creation  of  other  local 
agencies.  Before  1870  three  park  districts  were  established,  covering 
the  city  of  Chicago  and  neighboring  territory ; and  these  separate  park 
districts  have  continued  since  the  territory  has  been  added  to  the  city. 
Numerous  other  smaller  park  districts  have  been  established  more  re- 
cently, under  the  general  park  laws,  14  within  the  city  of  Chicago,  and 
11  in  the  county  outside  of  the  city. 

Another  agency  of  a different  type  is  the  Sanitary  District  of  Chi- 
cago organized  in  1890  for  the  construction  of  the  sanitary  and  ship 
canal,  and  including  the  city  of  Chicago  and  other  territory  in  Cook 
County.  The  area  of  this  district  has  been  extended  from  time  to  time  ; 
and  is  now  approximately  390  square  miles,  or  nearly  twice  the  area  of 
the  City  of  Chicago  and  over  two-fifths  of  the  total  area  of  Cook 
County. 

In  addition  to  the  Chicago  board  of  education  and  library  board, 
additional  school  districts,  high  school  districts,  library  boards  and  local 
drainage  districts  have  been  formed  outside  of  the  city.  Both  city  and 
county  are  also  divided  into  legislative  and  congressional  districts ; and 
for  convenience  in  elections,  into  2,466  election  precincts.  The  city  has 
also  35  wards  for  the  election  of  aldermen. 


Cook  county.  The  territory  now  forming  Cook  County  was 
included  in  or  attached  to  earlier  counties  in  the  Northwest  Territory 
and  in  Indiana  and  Illinois.1 

In  the  official  records  of  these  counties,  the  earliest  mention  of 
matters  relating  to  the  present  area  of  Cook  County  is  in  the  Fulton 
County  records  for  1823.  Orders  of  the  county  board  are  noted  re- 
lating to  taxes  and  to  commissioning  a justice  of  the  peace  at  Chicago. 

Section  8 of  the  act  of  1825  creating  Peoria  County  provides  that 
all  the  territory  north  of  that  county  and  of  the  Illinois  and  Kankakee 
rivers  shall  be  attached  to  Peoria  County.  Another  act  of  the  same 
date  (January  13,  1825)  defines  the  boundaries  of  several  counties,  and 
includes  in  Putnam  County  the  area  just  noted ; but  there  were  no 
provisions  for  organizing  the  county  government. 

The  records  of  Peoria  county  show  the  formation  of  a Chicago 
election  precinct  in  1826,  and  contain  data  relating  to  elections,  taxes, 
marriage  licenses  and  (in  1829)  a tavern  license  at  Chicago.2 

1 Knox  County,  Northwest  Territory,  1790-1801;  St.  Clair  County,  Indiana 
Territory,  1801-1809;  St.  Clair  County,  Illinois  Territory.  1809-1812;  Madison 
County,  Illinois  Territory,  1812-1814;  Edwards  County,  Illinois  Territory,  1814- 
1816;  Crawford  County,  Illinois  Territory,  1816-1819;  Clark  County,  State  of 
Illinois,  1819-1821;  Pike  County,  State  of  Illinois,  1821-1823;  Fulton  County, 
State  of  Illinois,  1823-1825;  Peoria  County,  State  of  Illinois,  1825-1831.  The 
southern  part  of  what  is  now  Cook  County  was  attached  to  Edgar  County  from 
1823-1825.  Counties  of  Illinois  (1906). 

2 F.  O.  Bennett:  Politics  and  Politicians  of  Chicago,  Cook  County  and  Illinois. 


914 


Cook  County  was  erected  by  act  of  January  15,  1831;  and  the 
first  county  officers  were  elected  in  March  of  that  year.  Within 
the  limits  as  established  since  1839  it  has  an  area  of  993  square 
miles.  Only  five  other  counties  in  Illinois  have  an  area  as  large ; 
while  the  average  area  of  Illinois  counties  is  about  540  square 
miles.  The  population  of  Cook  County  in  1910  was  2,405,233, 
about  40  per  cent  of  the  population  of  the  state ; and  of  this  about 
90  per  cent  was  in  the  City  of  Chicago.  The  proportion  of  the  county 
population  in  the  city  has  declined  to  some  extent  in  recent  years, 
from  92.3  per  cent  in  1890  to  90.9  per  cent  in  1910.  The  assessed 
valuation  of  the  city  in  1918  was  92.5  per  cent  of  the  total  assessed 
valuation  of  the  county. 


County  officers.  Under  the  first  state  constitution  county 
afifairs  in  Cook  County,  as  in  the  other  counties  in  the  state,  were 
managed  by  a board  of  three  county  commissioners,  elected  at 
large.  The  only  other  elective  county  officers  were  the  sheriff  and 
coroner.  The  county  clerk  and  the  treasurer  (who  acted  as 
assessor)  were  appointed  by  the  county  commissioners ; and  the 
county  recorder  and  circuit  attorney  were  appointed  by  the  Gov- 
ernor and  Senate.  Justices  of  the  peace  were  elected  by  districts; 
and  road  supervisors  and  school  trustees  were  appointed  by  the 
county  commissioners.  In  1837  the  term  of  county  commissioners 
was  fixed  at  three  years,  and  county  treasurers  and  probate  jus- 
tices were  made  elective ; and  in  1845  county  recorders  and  survey- 
ors were  made  elective. 

The  constitution  of  1848  continued  the  election  of  sheriff,  and 
provided  also  for  the  election  of  county  judges,  state  or  county 
attorneys,  court  clerks  and  justices  of  the  peace,  and  authorized 
an  optional  system  of  township  government. 

After  the  adoption  of  the  second  state  constitution,  Cook 
County,  in  1849,  like  other  northern  counties,  voted  to  establish 
the  township  system,  with  a board  of  supervisors  elected  by  towns 
as  the  county  board.  As  the  towns  were  laid  out,  the  city  of  Chi- 
cago was  partly  in  the  three  towns  of  North  Chicago,  South  Chi- 
cago and  West  Chicago,  and  the  Cook  County  board  of  supervisors 
at  first  consisted  of  39  members,  15  elected  by  the  towns  in  Chi- 
cago and  24  by  the  other  towns  in  the  county.  Some  years  later 
the  Chicago  members  of  the  board  were  made  elective  by  wards. 
By  1870  the  county  board  consisted  of  54  members,  20  from  the 
city  of  Chicago  and  the  remainder  from  the  other  towns  in  the 
county.  By  this  time  Chicago  had  about  seven-eighths  of  the 
population  and  assessed  valuation  of  the  county ; and  the  under- 
representation of  the  city  in  the  county  board  led  to  maneuvers 
for  political  advantage,  notably  in  the  legislation  of  the  60’s  trans- 
ferring the  police  from  the  city  to  the  county. 

In  the  constitutional  convention  of  1869-70  a provision  was 
adopted  (Section  7 of  Article  X)  for  a board  of  county  commis- 


915 


sioners  for  Cook  County,  to  consist  of  ten  members  elected  from 
the  city  of  Chicago  and  live  from  the  towns  outside  the  city.:{ 

When  considering  the  sections  relating  to  the  fees  and  salaries 
of  county  officers,  a number  of  amendments  were  proposed  to  give 
the  county  board  of  Cook  and  other  large  counties  full  authority 
to  control  the  compensation  of  county  officers,  so  that  this  might 
be  reduced.  But  none  of  these  amendments  was  agreed  to;  and 
the  provisions  authorizing  fees  and  salaries  to  be  fixed  by  law  and 
the  number  of  deputies  of  county  officers  to  be  determined  bv  the 
circuit  court  were  adopted.3 4 

In  the  revised  County  Law,  passed  in  1874,  more  definite  pro- 
visions were  made  for  the  Cook  County  board  of  commissioners ; 
and  additional  legislation  in  relation  to  this  board  has  been  enacted 
from  time  to  time.  In  1887,.  provision  was  made  for  the  election 
by  popular  vote  of  one  member  of  the  board  as  president,  who  was 
given  important  powers  of  appointment  and  veto ; and  the  same 
act  also  contained  other  provisions  on  financial  matters.  In  1893 
the  term  of  the  commissioners  was  extended  to  2 years ; and  in 
1913  this  was  further  extended  to  4 years.  In  1895  provisions  for 
a county  civil  service  commission  were  enacted. 

The  general  powers  and  functions  of  the  Cook  County  board 
of  commissioners  are  the  same  as  those  of  county  boards  in  other 
counties  in  Illinois.  They  have  charge  of  the  county  court  house 
and  other  county  buildings  and  property;  they  levy  county  taxes 
and  have  some  authority  over  county  finances ; they  control  county 
institutions  and  county  aid  for  the  relief  of  the  sick  and  indigent ; 
and  they  have  some  powers  in  relation  to  state  and  county  roads, 
bridges  and  drains.  But  their  financial  and  other  powers  are 
closely  restricted  by  constitutional  and  statutory  provisions  which 
make  the  other  elective  county  officers  practically  independent 
both  of  the  county  board  and  of  each  other;  and  there  is  no  central 
responsibility  or  control  for  county  business  as  a whole. 

Fees  and  salaries  of  most  elective  county  officers  and  judges 
are  regulated  by  state  law,  and  some  salaries  are  partly  paid  by  the 
state.  The  county  board  may  fix  the  compensation  and  expenses 
of  other  county  officers  and  employees ; but  the  number  of  deputies 
and  assistants  for  most  of  the  elective  county  officers  is  determined 
by  the  circuit  court ; and  the  employees  of  these  offices  are  appoint- 
ed by  the  elective  officers  without  reference  to  the  civil  service  rules. 

The  President  of  the  County  Board,  with  the  consent  of  the 
board,  appoints  a superintendent  of  public  service  and  some  other 
county  officers,  as  the  warden  of  the  county  hospital,  superintend- 
ent of  county  institutions  and  county  agent.  He  also  appoints, 
without  action  by  the  board,  the  civil  service  commissioners ; and 
other  appointments  to  positions  in  the  county  service  under  the 

3 This  provision  was  presented  from  the  floor  by  Mr.  Cameron  of  Cook 
County,  at  the  end  of  the  debate  in  committee  of  the  whole  on  the  article  on 
counties.  He  set  forth  the  unwieldy  nature  of  the  Cook  County  board  of 
supervisors,  and  its  election  on  political  and  party  grounds;  and  that  the 
country  towns  with  an  eighth  of  the  population  elected  a majority  of  the 
board.  The  provision  was  then  agreed  to  without  debate  or  record  vote. 
Proceedings  and  Debates.  II,  1367. 

4 Proceedings  and  Debates,  II.  1509-1519. 


916 


direct  control  of  the  county  board  are  made  under  civil  service 
regulations. 

Under  the  forest  preserve  act  of  1913  a forest  preserve  district 
has  been  formed,  comprising  the  whole  of  Cook  County.  Under 
the  provisions  of  the  act,  the  Cook  County  board  of  commissioners 
is  ex-officio  the  board  of  forest  preserve  commissioners  for  this 
district. 

The  Cook  County  board  of  commissioners  is  also  authorized  to 
exercise  the  powers  vested  in  townships  for  the  eight  townships 
wholly  included  within  the  city  of  Chicago;  but  their  functions  in 
this  respect  are  insignificant. 

The  constitution  of  1870  added  to  the  number  of  elective 
county  officers  in  all  counties,  and  contained  other  provisions  which 
have  increased  further  the  number  of  elective  officers  in  Cook 
County.  A state’s  attorney,  county  clerk  and  treasurer  were  re- 
quired to  be  elected  in  each  county,  and  the  coroner  was  restored 
as  a constitutional  officer,  in  addition  to  the  elective  county  officers 
named  in  the  constitution  of  1848.  Provisions  authorizing  probate 
courts  and  county  recorders  in  the  larger  counties  and  county  superin- 
tendents of  schools,  with  elective  officers,  have  been  applied  in 
Cook  and  other  counties.  The  special  provisions  relating  to  Cook 
County  Courts  require  the  election  of  additional  judges  and  court 
clerks  in  this  county. 

In  addition,  other  elective  county  officers  have  been  established 
by  statute,  including  the  county  surveyor  and  county  superin- 
tendent of  highways  in  all  counties',  and  a board  of  as- 
sessors and  a board  of  review  in  Cook  County,  as  well  as  ad- 
ditional judges  in  the  Circuit  and  Superior  courts. 

The  County  Clerk  is  also  clerk  of  the  county  court  and  clerk  of 
the  county  board ; and  in  Cook  County  is  ex-officio  county  comp- 
troller and  ex-officio  town  clerk  and  township  assessor  of  each 
of  the  eight  townships  included  wholly  within  the  city  of  Chicago. 
The  County  Treasurer  is  ex-officio  county  collector,  and  in  Cook 
County  is  also  ex-officio  collector  and  supervisor  for  each  of  the  eight 
townships  lying  wholly  within  the  city  of  Chicago. 


Courts  in  Cook  county.  When  Cook  county  was  organized  it 
was  included  in  the  fifth  judicial  circuit  formed  in  1829  and  com- 
prising all  of  the  state  north  of  the  Illinois  river.  In  1837  it  was 
transferred  to  the  newly  created  seventh  circuit.  In  1841  separate 
circuit  judges  were  abolished;  and  circuit  courts  were  held  by  justices 
of  the  supreme  court,  additional  justices  being  appointed.  Both  circuit 
and  supreme  court  judges  were  at  this  time  elected  by  the  General 
Assembly. 

The  constitution  of  1848  provided  for  nine  or  more  judicial  cir- 
cuits in  each  of  which  one  circuit  judge  should  be  elected  by  the 
people.  Under  these  provisions  Cook  County  formed  part  of  a ju- 
dicial circuit,  the  area  of  which  was  changed  from  time  to  time  as 


917 


new  circuits  were  created.  In  1870  there  were  30  circuits,  Cook  and 
Lake  counties  forming  one  circuit. 

In  the  earlier  days  the  only  local  courts  below  the  circuit  court 
were  those  held  by  the  justices  of  the  peace.  The  first  Chicago  city 
charter  of  1837  provided  for  a mayor’s  court.  The  charter  of  1851 
provided  that  the  mayor  might  hold  a police  court,  and  authorized  the 
council  to  designate  two  or  more  justices  of  the  peace.  In  1853  a Re- 
corder’s Court  was  established  for  the  City  of  Chicago,  with  criminal 
jurisdiction  concurrent  with  the  circuit  court  (except  in  cases  of 
treason  and  murder),  and  with  some  minor  civil  jurisdiction.  The 
judge  and  clerk  of  this  court  were  elected  by  popular  vote. 

A county  court  of  record  was  established  in  Cook  County  in 
1845 ; and  also  in  Jo  Daviess  County.  In  the  schedule  of  the  constitu- 
tion of  1848,  it  was  provided  that  these  courts  should  continue  until 
otherwise  provided  by  law.  In  1849,  the  name  of  these  courts  was 
changed  to  county  courts  of  common  pleas,  to  distinguish  them  from 
the  general  system  of  county  courts  established  by  the  constitution  of 
1848.  In  1859  the  name  of  the  Cook  County  court  of  common  pleas 
was  again  changed  to  the  superior  court.. 

The  proposed  constitution  of  1862  provided  for  a supreme 
court,  circuit  courts,  county  courts  and  justices  of  the  peace,  and 
authorized  four  circuit  judges  for  Cook  County.  There  was  no  pro- 
vision for  other  courts*  and  the  adoption  of  this  constitution  would 
have  required  the  consolidation  of  the  courts  in  Cook  County. ) 

In  the  constitutional  convention  of  1869-70  considerable  atten- 
tion was  given  to  the  courts  of  Cook  County ; and  special  provisions 
for  this  county  were  placed  in  the  constitution.  Early  in  the  conven- 
tion a resolution  was  introduced  by  Mr.  Anthony  relating  to  Cook 
County  courts,  similar  to  the  provisions  later  reported  by  the  com- 
mittee on  the  judicial  department  and  afterwards  adopted.  Soon 
after  the  report  of  the  committee  was  submitted,  a petition  from 
Chicago  lawyers  was  presented  asking  for  the  consolidation  of  the 
Cook  County  courts  in  one  court.  This  was  followed  by  a remon- 
strance from  other  Chicago  lawyers,  asking  for  the  retention  of  the 
existing  courts ; and  by  other  petitions  and  memorials  on  the  subject. 

When  the  article  on  the  judicial  department  was  taken  up  in  com- 
mittee of  the  whole,  the  question  of  the  Cook  County  courts  was  de- 
bated at  some  length.  Mr.  Coolbaugh  offered  an  amendment  to  the 
committee  report,  to  provide  for  one  court  with  the  same  number  of 
judges  as  was  proposed  for  the  separate  circuit  and  superior  courts. 
This  was  supported  by  Mr.  Cameron ; but  was  opposed  by  Mr.  Hitch- 
cock (President  of  the  Convention),  Mr.  Anthony,  Mr.  J.  C.  Haines 
(formerly  mayor  of  Chicago)  and,  less  emphatically,  by  Mr.  Medill. 
All  of  the  Cook  County  members  favored  an  increased  number  of 
judges ; and  that  the  two  courts  should  have  equal  and  concurrent 
jurisdiction.  The  main  argument  for  continuing  the  separate  courts 
was  that  they  were  in  existence,  and  that  there  was  no  complaint  of 
the  superior  court  which  it  was  proposed  to  combine  with  the  circuit 
court.  It  was  also  said  that  seven  judges  were  too  many  for  one  court. 


918 


The  proposal  for  a single  consolidated  court  was  defeated,  by  a 
vote  of  17  to  32 ; and  the  provisions  for  separate  courts  were  adopted, 
in  accordance  with  the  wishes  of  a majority  of  the  Cook  County  mem- 
bers.5 

The  constitution  of  1870  provided  that  Cook  County  shall  be  one 
judicial  circuit,  with  five  judges,  including  the  judge  of  the  recorder’s 
court  of  Chicago,  which  was  continued  as  the  criminal  court  of  Cook 
County,  with  the  criminal  jurisdiction  of  a circuit  court.  The  superior 
court  of  Chicago  was  also  continued  as  the  superior  court  of  Cook 
County.  The  general  assembly  was  authorized  to  increase  the  number 
of  judges  with  the  increase  of  population. 

By  these  provisions  the  previously  existing  courts  were  continued, 
with  some  extension  of  jurisdiction;  and  the  former  statutory  superior 
and  recorder’s  courts  were  given  a constitutional  basis,  which  pre- 
vented their  abolition  or  consolidation. 

With  the  increasing  population  of  Cook  County,  additional  judges 
have  been  authorized  from  time  to  time.  In  1887,  six  additional 
circuit  judges  were  provided;  in  1893,  three  more;  and  in  1915,  six 
more,  making  a total  of  twenty.  An  act  of  1875  authorized  additional 
superior  court  judges  up  to  nine;  in  1893  a further  increase  was 
authorized  to  twelve,  in  1911,  to  eighteen;  and  in  1917  another  in- 
crease to  twenty.  This  makes  a total  of  forty  judges  in  these  courts. 

Additional  circuit  judges  have  been  authorized  just  before  the 
regular  election  for  such  judges,  so  the  entire  number  is  elected  at  one 
time.  The  additional  superior  court  judges  have  been  authorized  in 
other  years  than  that  of  the  regular  judicial  elections,  and  in  some  cases 
the  election  of  such  judges  has  been  designated  for  November.  The 
superior  court  judges  are  thus  elected  in  groups  at  different  times. 

The  Criminal  Court  of  Cook  County  is  held  by  judges  of  the 
Circuit  and  Superior  courts ; and  no  judges  of  the  Criminal  Court  are 
elected  as  such.  A Juvenile  Court  has  also  been  established,  as  a 
branch  of  the  Circuit  Court,  presided  over  by  one  of  the  Circuit  judges. 
Jury  Commissioners  are  appointed  by  the  judges  of  the  several  courts 
of  record. 

By  the  act  of  1877  creating  appellate  courts,  Cook  County  was 
created  an  appellate  court  district.  No  additional  judges  are  elected 
for  these  courts ; but  three  circuit  or  superior  judges  are  assigned  by 
the  supreme  court  to  duty  in  each  appellate  court.  By  act  of  1897, 
branch  appellate  courts  are  authorized,  with  additional  judges  to  be 
assigned  by  the  supreme  court,  when  necessary  on  account  of  ac- 
cumulated cases ; and  3 such  branch  courts  have  been  constituted  in 
Cook  County.  The  clerk  of  the  appellate  court  is  elected  for  a term  of 
six  years. 

Under  section  28  of  Article  VI  of  the  constitution  of  1870,  all 
justices  of  the  peace  in  the  city  of  Chicago  were  appointed  by  the 
Governor,  with  the  advice  and  consent  of  the  senate,  on  the  recom- 
mendation of  a majority  of  the  judges  of  the  circuit,  superior  and 

8 Proceedings  and  Debates  I,  II,  96,  852,  965,  974,  1012,  1040,  1077,  1145- 
1163,  1472-1490. 


919 


county  courts ; and  were  removable  by  summary  proceedings  in  the 
circuit  or  superior  courts  for  extortion  or  other  malfeasance. 

Such  justices  of  the  peace,  with  a very  limited  jurisdiction  and 
paid  by  fees,  held  the  only  courts  for  minor  cases  in  Chicago  until 
1905.  These  arrangements  worked  badly.  The  various  justices  acted 
independently  without  administrative  supervision ; and  their  limited 
jurisdiction  forced  many  cases  into  the  higher  courts. 

After  the  adoption  of  the  constitutional  amendment  of  1904 
authorizing  special  legislation  for  Chicago,  including  laws  relating  to 
municipal  courts,  a municipal  court  was  established,  which  took  the 
place  of  justices  of  the  peace  in  Chicago. 


Elective  County  Officers.  The  total  number  of  officers  elected 


for  Cook  County  is  now  79  as  follows : 

President  of  the  County  Board  (elected  also  as  a commissioner).  1 

County  Commissioners 15 

States  Attorney 1 

Sheriff 1 

County  Treasurer 1 

County  Clerk  and  Clerk  of  County  Court 1 

County  Recorder 1 

Coroner  1 

County  Superintendent  of  Schools 1 

County  Surveyor 1 

Board  of  Assessors 5 

Board  of  Review 3 

Judges  of  Circuit  Court. 20 

Judges  of  Superior  Court 20 

Judge  of  Probate  Court , 1 

Judge  of  County  Court 1 

Clerk  of  Circuit  Court 1 

Clerk  of  Superior  Court 1 

Clerk  of  Criminal  Court 1 

Clerk  of  Probate  Court 1 

Clerk  of  Appellate  Court 1 


79 

Of  these,  twenty-seven  are  elected  at  the  same  time,  at  the  November 
elections  in  the  middle  of  a Governor’s  term  ; and  twenty-one  judges 
(20  circuit  court  and  1 superior  court)  are  elected  at  the  judicial  elec- 
tions in  June  of  every  sixth  year. 

As  shown  in  the  summary  of  Cook  County  appropriations  for 
the  year  1919,  the  total  regular  staff  of  the  county  offices  in  this  coun- 
ty aggregates  about  3,000  persons.  In  addition  there  is  a considerable 
body  of  extra  employes,  especially  in  connection  with  the  assessment 
and  collection  of  taxes.  The  total  salary  appropriations  amount  to  al- 
most $6,000,000  a year  and  the  total  appropriations  for  the  county 
government,  to  about  $13,500,000. 


920 


City  of  Chicago.  Under  acts  of  Congress  and  the  state  legis- 
lature, passed  in  1829,  the  town  of  Chicago  was  first  laid  out  and  the 
plat  filed  on  August  4,  1830.  On  December  4,  1829,  the  first  trustees 
of  the  school  section  were  appointed.  In  1833  the  town  was  incorpor- 
ated under  the  general  town  law ; and  several  special  acts  of  the  legis- 
lature relating  to  the  town  of  Chicago  were  passed  during  the  next 
four  years. 

In  1837,  Chicago  was  incorporated  as  a city  by  special  act  of  the 
legislature.  The  first  city  charter  was  prepared  by  a local  committee 
and  approved  at  a mass  meeting  of  citizens,  before  it  was  passed  by  the 
legislature.  This  charter  was  amended  from  time  to  time  by  more  than 
a score  of  special  acts.  In  1851  a second  revised  charter  was  en- 
acted, which  in  turn  was  frequently  amended  and  supplemented  by 
special  acts.  A third  charter  was  enacted  in  1863 ; and  this  also  was 
amended  from  time  to  time.  In  1875,  the  city  of  Chicago  voted  to 
adopt  the  general  cities  and  villages  act  of  1872 ; and  has  been  gov- 
erned under  its  provisions  and  later  amendments;  but  special  provis- 
ions for  Chicago  have  also  been  passed  from  time  to  time  by  means 
of  classified  and  optional  acts,  and  since  1904  by  special  legislation 
subject  to  local  referendum. 

Under  the  first  city  charter,  the  city  had  an  area  of  10.6  square 
miles.  These  limits  have  been  extended  from  time  to  time,  at  first 
by  special  acts  of  the  legislature,  and  since  1870  under  the  provisions 
of  the  cities  and  villages  act  for  the  annexation  of  territory.  Four 
additions  were  made  before  1870 ; and  by  the  latter  date  the  city  had 
an  area  of  35.66  square  miles.  In  1889,  an  area  of  126.07  square 
miles  was  added  at  one  time ; including  the  city  of  Lake  View,  the 
village  of  Hyde  Park,  the  towns  of  Lake  and  Jefferson  (embracing 
several  suburban  districts)  and  part  of  the  incorporated  town  of  Cic- 
ero. Further  annexations  have  been  made  from  time  to  time  of 
small  areas,  absorbing  a number  of  villages ; and  the  total  area  of  the 
city  is  now  about  200  square  miles. 

The  following  table  shows  the  development  of  the  city  by  an- 
nexations : 

Territorial  Growth  of  Chicago. 

Town  of  Chicago  incorporated  August,  1833. 

City  of  Chicago  incorporated  March  5,  1837. 

1.  (To  Western  Avenue)  Act  of  Feb.  16,  1847. 

2.  (Fullerton  Ave.  and  31st  St.,)  Act  of  Feb.  12,  1853. 

3.  (To  39th  St.,  S.  and  N.  W.)  Act  of  Feb.  13,  1863. 

4.  (To  Crawford  Ave.  W.)  Act  of  Feb.  27,  1869. 

5.  (North  to  Fullerton  Ave.  N.  W.)  Act  of  May  16,  1887. 

6.  (To  Cicero  Ave.  W.,  Belmont  Ave.  N.  W.)  Act  of  April  29, 

1889. 

7.  Lake  View,  Jefferson,  Hyde  Park,  Lake  and  part  of  Cicero, 

Election  June  29,  1889. 

8.  Village  of  Gano,  April  1,  1890. 

9.  South  Englewood,  May  12,  1890. 


921 


10.  Villages  of  Washington  Heights  and  West  Roseland,  Nov. 

4,  1890. 

11.  Village  of  Fernwood,  April  7,  1891. 

12.  Villages  of  West  Ridge  and  Rogers  Park,  April  19,  1893. 

13.  Village  of  Norwood  Park,  Nov.  7,  1893. 

14.  Part  of  Calumet,  Feb.  25,  1895. 

15.  Part  of  Cicero,  (Austin),  April  4,  1899. 

16.  Village  of  Edison  Park,  Nov.  8,  1910. 

17.  Village  of  Morgan  Park,  April  7,  1914. 

18.  Village  of  Clearing,  April  6,  1915. 

19.  Part  of  Evanston,  Feb.  8,  1915. 

20.  Part  of  Niles  (re-annexed),  April  5,  1915. 

21.  Part  of  Town  of  Stickney,  June  7,  1915. 

22.  Part  of  Calumet  by  Act  of  Legislature,  July  1,  1915  (terri- 

tory surrounded  by  city  after  annexation  of  Morgan  Park). 

23.  Part  of  Town  of  Stickney,  Nov.  6,  1917. 

Local  districts  not  noted  above  absorbed  by  annexation  include: 
Bowmansville,  Brighton,  Jefferson,  Irving  Park,  Maplewood  and 
Ravenswood. 

As  a result  of  these  extensions,  the  city  of  Chicago  now  includes 
the  whole  area  of  eight  townships,  and  part  of  six  others,  and  also 
that  of  the  former  city  of  Lake  View  and  twenty  former  villages. 
By  annexation  the  former  city  and  village  governments  have  been 
completely  absorbed  in  that  of  the  city  of  Chicago.  The  townships 
wholly  within  the  city  retain  a nominal  existence ; but  under  act  of 
1901  the  town  officers  in  such  towns  have  been  abolished,  and  their 
powers  are  exercised  by  the  county  board,  county  clerk  and  county 
treasurer.  The  towns  only  partly  within  the  city  have  the  usual  list 
of  town  officers. 


Organization  of  City  Government.  The  organization  of  the 
eity  government  proper  is  comparatively  simple.  The  principal  elec- 
tive officers  are  the  mayor  and  aldermen.  The  mayor  is  elected  for 
a four-year  term.  The  council  consists  of  70  members,  two  aldermen 
from  each  ward,  elected  for  two-year  terms,  one  each  year.  A spec- 
ial act  of  1919,  subject  to  referendum,  would  reduce  the  number  of 
aldermen  to  50,  one  to  be  elected  from  each  of  50  wards ; but  this  act 
was  not  adopted  on  the  referendum  vote.  Other  elective  offi- 
cers are  the  city  clerk  and  city  treasurer,  elected  for  two-year 
terms,  in  April,  at  the  same  time  as  aldermen;  and  the  chief  justice 
and  30  associate  justices  of  the  Municipal  Court,  and  the  bailiff  and 
clerk  of  that  court,  elected  for  six-year  terms,  at  the  November  elec- 
tions, one-third  of  the  justices  being  elected  every  two  years.  The 
administrative  functions  of  the  city  government  are  exercised  through 
20  departments,  the  heads  of  which  are  appointed  by  the  mayor  with 
the  consent  of  the  council.  Subordinate  officials  and  employes  are 
selected,  for  the  most  part,  under  civil  service  regulations. 


922 


There  are  altogether  106  elective  city  officers.  Each  voter 
votes  for  38  city  officers,  for  a maximum  of  five  at  the  city 
election,  and  for  from  ten  to  thirteen  municipal  court  officers  at  the 
November  elections. 

Connected  with  the  city  government  are  several  other  substantially 
independent  agencies : the  Board  of  Educaiton,  the  Library  Board  and 
the  Municipal  Tuberculosis  Sanitarium.  The  members  of  these  bodies 
are  appointed  by  the  mayor,  subject  to  confirmation  by  the  council; 
taxes  for  their  use  are  levied  by  the  council.  But  the  action 

of  the  council  in  these  matters  is  largely  formal  and  perfunctory;  and 
these  bodies  are  practically  free  from  control  by  the  city  government 
proper. 


Overlapping  authorities.  In  addition  to  the  various  organs  of 
the  city  government  there  are  a large  number  of  other  local  governing 
agencies  exercising  jurisdiction  within  the  limits  of  the  city.  Cook 
County  and  the  Sanitary  District  of  Chicago  cover  a larger  area  than 
the  city;  and  every  resident  of  the  city  is  also  under  the  jurisdiction  of 
both  of  these  larger  districts.  Other  bodies  have  authority  over  only 
part  of  the  city;  but  every  resident  of  the  city  is  subject  in  some  de- 
gree to  one  or  more  of  these  authorities. 

Below  is  a list  of  the  local  governing  agencies  within  the  limits 
of  the  city  of  Chicago : 

Cook  County 
Forest  Preserve  District 
Sanitary  District  of  Chicago 
City  of  Chicago 

Board  of  Education 
Library  Board 

Municipal  Tuberculosis  Sanitarium 
14  towns  (8  of  these  wholly  within  the  city  have  no  town  officers 
and  are  almost  eliminated). 

17  Park  Districts,  as  follows: 

South  Park  Commissioners 
West  Chicago  Park  Commissioners 
Lincoln  Park  Commissioners 
Ridge  Avenue  Park  Commissioners 
North  Shore  Park  Commissioners 
Calumet  Park  Commissioners 
Fern  wood  Park  Commissioners 
Ridge  Park  Commissioners 
Irving  Park  Commissioners 
Northwest  Park  Commissioners 
Old  Portage  Park  Commissioners 
Edison  Park  Commissioners 

West  Pullman  Park  Commissioners  (partly  outside  of  city) 
Ravenswood  Manor-Gardens  Park  Commissioners 
River  Park  Commissioners 


923 


Commissioners  of  the  First  Park  District  of  the  City  of  Ev- 
anston (partly  within  Chicago) 

Albany  Park  Commissioners 

The  entire  city  constitutes  one  school  district ; and  territory  an- 
nexed to  the  city  is  also  annexed  to  the  school  district.  The  board  of 
education  is  a body  politic  and  corporate,  and,  as  reorganized  by  act  of 
1917,  consists  of  11  members,  appointed  by  the  mayor  with  the  ap- 
proval of  .the  council,  two  or  three  retiring  each  year,  and  their  succes- 
sors to  be  appointed  for  five-year  terms.  The  city  treasurer  is  ex- 
officio  school  treasurer ; and  is  required  to  keep  school  funds  separate, 
subject  to  the  order  of  the  board  of  education  upon  warrants  signed 
by  its  president  and  secretary  and  countersigned  by  the  mayor  and  city 
comptroller. 

The  Public  Library  is  organized  under  the  library  law  of  1872, 
with  a board  of  nine  directors,  appointed  by  the  mayor,  with  the  ap- 
proval of  the  council,  three  being  appointed  each  year  for  terms  of  three 
years.  This  board  has  exclusive  control  of  library  funds,  which  are 
kept  by  the  city  treasurer  subject  to  the  order  of  the  library  board. 

The  Municipal  Tuberculosis  Sanitarium  has  been  established  under 
an  act  of  1908,  with  a board  of  directors  of  three  members,  appointed 
by  the  mayor,  with  the  approval  of  the  council,  one  each  year  for  a 
term  of  three  years. 

Other  governmental  agencies,  connected  with  the  city  government, 
but  having  a special  legal  status  are  the  Municipal  Court,  the  House  of 
Correction,  the  Board  of  Election  Commissioners  and  the  boards  of 
trustees  of  pension  funds. 

The  House  of  Correction  is  governed,  under  an  act  of  1871  by  a 
board  of  inspectors,  consisting  of  the  mayor  and  three  other  persons 
appointed  by  the  mayor,  with  the  advice  and  consent  of  the  council, 
one  appointed  each  year  for  a term  of  three  years.  This  board  has 
power  to  make  agreements  with  the  county  board  and  with  city  and 
village  trustees  as  to  the  keeping  of  prisoners. 

The  board  of  election  commissioners  is  an  anomalous  body.  Its 
members  are  appointed  by  the  County  Judge;  and  some  salaries  and 
the  expenses  of  general  and  state  elections  are  borne  by  the  county. 
But  they  are  also  city  officials ; and  the  salaries  of  most  employees  and 
the  expenses  of  city  elections  are  borne  by  the  city. 

Boards  of  trustees  of  pension  funds  also  occupy  a peculiar  posi- 
tion. They  consist  of  representatives  of  the  city  or  other  local  govern- 
ment and  representatives  of  the  particular  class  of  public  employes. 
Separate  boards  have  been  provided  for  the  police,  firemen,  school,  li- 
brary, House  of  Correction,  Municipal  employes,  and  the  several  park 
district  pension  funds. 


Sanitary  District  of  Chicago.  The  Sanitary  District  of  Chi- 
cago is  a distinct  municipal  corporation,  organized  in  1890  (under  an 
act  of  1889),  for  the  primary  purpose  of  constructing  a channel  or 
canal,  from  the  Chicago  river  to  the  Des  Plaines  river,  for  the  disposal 


924 


of  the  sewage  of  Chicago  and  neighboring  territory  so  as  to  prevent  the 
contamination  of  Lake  Michigan,  which  is  the  source  of  the  city’s  water 
supply.  The  district  has  also  power  to  establish  and  maintain  docks  and 
to  control  water  power  in  connection  with  the  drainage  canal. 

As  first  established  the  district  covered  185  square  miles,  including 
the  greater  part  of  the  city  of  Chicago  and  a smaller  area  outside  of 
the  city.  This  area  has  been  extended  from  time  to  time,  by  act  of  the 
legislature  subject  to  optional  local  referendum;  and  is  now  nearly  400 
square  miles,  including  the  entire  city  of  Chicago  and  about  an  equal 
area  outside  of  the  city,  and  over  two-fifths  of  the  area  of  the  county. 
The  population  of  the  district  is  about  97  per  cent  of  that  of  the  county ; 
and  the  assessed  valuation  is  about  98  per  cent  of  the  entire  county. 

The  governing  body  of  the  district  is  a board  of  nine  trustees, 
elected  at  large  by  the  voters  in  the  district,  three  members  every  sec- 
ond year  for  a term  of  six  years.  The  President  of  the  board  is  one 
of  the  trustees  elected  as  President  as  well  as  trustee. 

The  district  has  its  own  taxing  and  borrowing  powers.  The  main 
channel  has  cost  approximately  $24,000,000.  Improvements  have  been 
made  in  the  Chicago  river  at  a cost  of  more  than  $10,000,000 ; a north 
shore  channel,  providing  a direct  outlet  for  the  sewage  of  Evanston 
and  the  village  of  Wilmette  has  cost  $3,250,000,  and  the  Calumet-Sag 
channel  (now  under  construction),  to  drain  the  Calumet  region  to  the 
south  of  the  city,  will  cost  about  $12,500,000.  From  the  water  power 
developed  at  Lockport,  the  district  generates  electric  current  which  is 
sold  to  the  city  of  Chicago  and  other  municipal  corporations. 

Within  the  Sanitary  District  and  outside  the  city  of  Chicago  there 
are  162  separate  taxing  bodies,  in  addition  to  the  county  and  the  Sani- 
tary District,  as  follows : 

5 Cities : Berwyn,  Blue  Island,  Evanston,  Harvey  and  West  Ham- 
mond. 

The  incorporated  town  of  Cicero. 

39  Villages : Bellwood,  Broadview,  Brookfield,  Burnham,  Burr 

Oak,  Dolton,  Elmwood  Park  (in  part).  Evergreen  Park,  For- 
est Park,  Franklin  Park,  Glencoe,  Glenview,  Hinsdale  (in 
part)  Kenilworth,  La  Grange,  La  Grange  Park,  Lyons,  May- 
wood,  Melrose  Park,  Morton  Grove,  Mount  Greenwood, 
Niles,  Niles  Center,  Oak  Park,  Phoenix,  Posen,  Riverdale, 
River  Forest,  River  Grove,  Riverside,  Robbins,  Shermerville 
(in  part),  South  Holland  (in  part),  Stickney,  Summit,  Tess- 
ville,  Western  Springs,  Wilmette  and  Winnetka. 

9 Park  Districts : Blue  Island,  Clyde,  Glencoe,  Kenilworth,  Oak 
Park,  Riverdale,  River  Forest,  Wilmette,  Winnetka,  (The 
First  Park  District  of  Evanston  is  partly  within  Chicago.) 

12  Towns  : 6 wholly  within  the  district — Berwyn,  Evanston,  New 
Trier,  River  Forest,  Oak  Park  and  Riverside ; 6 partly  outside 
the  district — Bremen,  Leyden,  Lyons,  Northfield,  Proviso 
and  Thornton.  (In  addition  3 towns  wholly  within  the  dis- 
trict and  partly  in  Chicago — Calumet,  Niles  and.  Stickney  ; and 
3 towns  partly  outside  the  district  and  partly  in  Chicago — 
Maine,  Norwood  Park  and  Worth. 


925 


66  School  Districts : 47  wholly  within  the  Sanitary  district,  and 
19  partly  outside. 

11  High  School  Districts:  6 wholly  and  4 in  part;  also  part  of 

the  non-high  school  district. 

15  Library  Boards. 

4 Drainage  Districts. 

In  these  communities  the  machinery  of  local  government  is  even 
more  complex  and  more  difficult  for  the  voter  than  in  the  city  of  Chi- 
cago. In  addition  to  substantially  the  same  county,  sanitary  district 
and  city  or  village  officers,  the  voters  in  these  communities  are  also  re- 
quired to  elect  township  and  school  district  officers,  and  in  some  places 
also  park,  library,  high  school  and  drainage  district  officers.  They  have 
to  face  the  problems  caused  by  the  extraordinary  number  of  elective 
county  officers  in  Cook  County  and  also  those  caused  by  the  large 
number  of  local  elections  for  the  various  minor  districts. 


Towns  in  Cook  county.6  There  are  altogether  38  towns  in 
Cook  County.  Of  these,  eight  are  entirely  within  the  city  of 
Chicago,  and  have  practically  no  separate  town  government.  With- 
in the  Sanitary  District  are  included  ten  other  towns  entirely  and 
nine  more  in  part.  Outside  of  the  Sanitary  District,  there  are 
eleven  towns. 

Of  the  towns  entirely  outside  of  the  Sanitary  District,  all  are 
mainly  agricultural,  except  Bloom  Township,  which  has  mainly 
an  urban  and  suburban  population  in  the  industrial  city  of  Chicago 
Heights  and  the  villages  of  Glenwood,  South  Chicago  Heights  and 
Steger.  Of  the  other  ten  townships  entirely  outside  of  the  Sani- 
tary District,  seven  each  contain  not  more  than  one  village,  and 
most  of  these  had  less  than  1,000  population  in  1910 ; the  largest 
(Lemont)  had  2,284  in  1910.  These  townships  are  in  two  groups: 
six  in  the  northwest  (Barrington,  Elk  Grove,  Hanover,  Palatine, 
Schaumberg  and  Wheeling)  ; and  four  in  the  southern  part  of 
the  county  (Lemont,  Palos,  Orland  and  Rich). 

The  towns  partly  in  and  partly  outside  of  the  Sanitary  District 
differ  in  character.  Several  of  them  have  a number  of  suburban 
villages,  some  within  and  some  outside  the  Sanitary  District. 
Such  towns  as  Lyon^  and  Proviso  (west  of  Chicago)  and  Thorn- 
ton (on  the  south)  are  largely  suburban  in  character.  Leyden, 
Norwood  Park  and  Maine  (northwest  of  Chicago)  and  Worth  (on 
the  south)  include  several  villages  or  suburban  districts.  Bremen 
and  Northfield  have  some  small  villages,  but  are  as  yet  largely  agri- 
cultural. 


6 The  terms  town  and  township  are  used  in  the  Illinois  statutes  in  a number 
of  different  senses.  The  congressional  township  is  a geographical  area  used 
in  the  land  surveys,  and  as  such  has  no  political  significance.  The  school 
township  is  in  most  cases,  but  not  always  co-termlnous  with  the  congressional 
township.  Th^  civil  town,  under  the  township  organization  law,  is  more  often 
different  in  area  from  the  school  and  congressic  nal  township.  Incorporated 
towns  are  usually  villages,  incorporated  before  1870  ; but  the  incorporated  town  of 
Cicero  is  co-terminous  with  the  civil  town,  and  has  the  usual  officers  of  the  civil 
town  as  well  as  officers  for  village  functions. 


926 


All  of  the  ten  towns  entirely  within  the  Sanitary  District  and 
partly  or  wholly  outside  of  Chicago  may  be  classed  as  suburban. 
Several  suburban  townships  cover  only  a comparatively  small  area, 
taken  out  of  the  former  congressional  townships — e.  g.  Norwood 
Park,  Riverside,  River  Forest,  Oak  Park,  Berwyn  and  Cicero. 

The  towns  of  Lyons,  Proviso  and  Thornton  have  the  most 
complex  variety  of  local  districts.  Lyons  has  10  villages  (6  partly 
in  other  townships),  10  school  districts  (5  union  districts),  2 
library  boards  and  part  of  1 high  school  district.  Proviso  has  9 
villages  (2  partly  in  other  townships),  9 school  districts  (3  union 
districts),  3 library  boards,  1 high  school  district  and  part  of  2 
others.  Thornton  has  2 cities,  11  villages  (4, partly  in  other  town- 
ships), 14  school  districts  (2  union  districts),  1 high  school  dis- 
trict, 1 library  board  and  1 park  district. 

For  towns  not  wholly  included  in  Chicago  the  regular  list  of 
elective  town  officers  is : Supervisor,  Town  Clerk,  Assessor,  Town 
Collector,  Highway  Commissioner,  1 to  5 Justices  of  the  Peace, 
1 to  5 Constables,  and  3 school  trustees.  There  are  however,  some 
exceptional  arrangements  for  certain  of  the  towns  in  Cook  County. 
The  only  elective  town  officers  for  the  town  of  the  city  of  Evanston 
are  justices  of  the  peace  and  constables.  The  city  clerk  is  ex- 
officio  town  clerk,  the  city  treasurer  is  ex-officio  town  collector, 
and  the  assessor  is  appointed  by  the  county  board  of  assessors. 
The  distinctly  suburban  towns  of  Berwyn,  Cicero,  Oak  Park  and 
River  Forest  do  not  elect  highway  commissioners.  In  two  cases, 
three  towns  are  included  in  one  school  township ; and  only  one  set 
of  school  trustees  is  elected  for  each  of  these  school  townships.7 
Two  towns  (Thornton  and  Bloom)  each  include  2 school  town- 
ships. 

The  total  number  of  elective  town  officers  in  the  county  is  as 
follows : 


Elective  Town  Officers. 

Supervisors  

Town  Clerks  

•Assessors  

Town  Collectors  

Highway  Commissioners  

Justices  of  the  P.eace 

Constables  

School  Trustees  


29 

29 

29 

29 

25 

94 

83 

84 


Total 


402 


Towns,  Villages  and  Cities  in  Cook  County. 

Population. 

f A > 

1880  1910 


Barrington  township  1,592  1,953 

Barrington  village  (part)  410  939 

Berwyn  township  5,841 

Berwyn  City  5.841 

Bloom  township  1,431  18,339 

Chicago  Heights  City 14,525 

Glenwood  Village  581 

Homewood  Village  (part)  174 

South  Chicago  Heights  Village 552 

Steger  Village  (part)  919 


’Berwyn,  Cicero  and  Oak  Park;  and  Proviso,  River  Forest  and  Riverside. 


927 


Towns,  Villages  and  Cities  in  Cook  County — Continued. 

Population. 


Bremen  township  

Bremen  Village  

Posen  Village  (part)  

Robbins  Village  (1918) 

Tinley  Park  Village 

Calumet  township  (outside  Chicago). 

Blue  Island  (part)  

Morgan  Park  Village  (part) 

Riverdale  Village  (part)  

Washington  Heights  Village 

Burr  Oak  (1912) 

Chicago  City  

Cicero  Town  

, Austin  

Brighton  

Clyde  

Oak  Park  Village 

Elk  Grove  Township 

Mt.  Prospect  Village  (part)  (1917) 

Evanston  Township  

Evanston  Village  

Rogers  Park  Village 

South  Evanston  Village 

(See  Ridgeville  Township) 

Hanover  Township  

Bartlett  Village  

Elgin  City  (part)  

Hyde  Park  Township 

Jefferson  Township  

Bowmansville  

Irving  Park  Village 

Jefferson  Village  

Maplewood  Village  

Lake  Township  

Lake  View  Township 

Ravenswood  Village  

Lemont  Township  

Lemont  Village  

Desplaines  Village  (part) 

Leyden  Township  

Franklin  Park  Village 

Elmwood  Park  Village  (1914) 

River  Grove  Village 

Schiller  Park  Village  (1914) 

Lyons  Township  

Brookfield  Village  (part)  

Hodgkins  Village  

La  Grange  Village  

Lyons  Village  (part)  

Riverside  Village  (part)  

Spring  Forest  Village  (part)  

Summit  Village  

Western  Springs  Village  (part)... 

Justice  (1911) 

Maine  Township  

Des  Plaines  Village  

Edison  Park  Village 

Park  Ridge  

Riverview  Village  

New  Trier  Township.  

Evanston  Village  (part)  

Glencoe  Village  

Gross  Point  Village 

Kenilworth  

Wilmette  Village  

Winnetka  Village  

Niles  Township  

Morton  Grove  Village 

Niles  Village  

Niles  Center  Village 

Tessville  Village  

Northfield  Township  

Glen  View  Village 

Shermerville  Village  

Norwood  Park  Township 

Oak  Park  Township  and  Village 

Orland  Township  

Orland  Park  Village  


1,653 

210 

2,576 

503 

1,053 

1,898 

309 

309 

8,881 

3,659 

3,494 

587 

503,185 

2,185,283 

5,182 

14,557 

1,359 

605 

96 

1,888 

1,201 

1,302 

6,703 

690 

4,200 

529 

1,517 

1,300 

1,649 

408 

223 

15,716 

4,876 

337 

490 

619 

725 

18,380 

6,565 

485 

3,798 

4,296 

2,108 

2,284 

178 

1,383 

2,813 

683 

418 

3,009 

11,289 

732 

480 

531 

5,282 

1,394 

54 

314 

949 

898 

2,346 

7,193 

640 

2,348 

543 

457 

2,009 

312 

2,223 

12,532 

200 

387 

1,899 

327 

1,008 

881 

419 

4,953 

584 

3,168 

2,503 

4,203 

836 

569 

568 

359 

1,807 

2,675 

652 

441 

1,675 

5,251 

1,888 

19,444 

1,208 

1,230 

367 

928 


Towns , Villages  and  Cities  in  Cook  County^- Concluded. 

Population. 


1880 


Palatine  Township  1,974 

Palatine  Village  731 

Palos  Township  1,209 

Spring  Forest  Village  (part) 

Palos  Park  Village  (1914) 

Proviso  Township 3,061 

Bellwood  Village  (1913).. 

Broadview  

Brookfield  Village  (part)  

Forest  Park  Village 

Harlem  923 

Hillside  Village  

La  Grange  Park  Village 

Maywood  Village  716 

Melrose  Park  Village 

Western  Springs  Village  (part) 

Rich  Township  1,702 

Matteson  Village  451 

Ridgeville  Township  (now  town  of  city  of  Evanston) 

Evanston  City  4,200 

(See  Evanston  Township) 

River  Forest  Township 

River  Forest  Village 

Riverside  Township  498 

Riverside  Village  (part)  450 

Brookfield  Village  (part)  

Lyons  Village  (part)  

Schaumberg  Township  954 

Stickney  Township  

Clearing  Village  (1912-1915) 

Stickney  Village  (1913) 

Thornton  Township  3,337 

Burnham  Village  

Dolton  Village  448 

East  Hazelcrest  (1918)  

Hazelcrest  (1911)  

Harvey  City  

Homewood  Village  (part)  313 

Lansing  Village  218 

Phoenix  Village  

Posen  Village  (part)  


South  Holland  Village 

Thornton  Village  401 

West  Hammond  City  

Wheeling  Township  2,296 

Arlington  Heights  Village 

Mt.  Prospect  Village  (1917) 

Wheeling  Village  204 

Worth  Township  2,180 

Blue  Island  (part)  1,039 


Evergreen  Park  Village . . . . 
Morgan  Park  Village  (part) 
Mt.  Greenwood  Village 

Oak  Lawn  Village  

Worth  Village  (1914) 

Chicago  Ridge  (1914) 


1910 

2,147 

1,144 

1,405 

20 


26,921 


1296 

6,594 

328 

1,131 

8,035 

4,806 

7 

1,301 

461 

24,978 

24,978 


2,456 

1,980 

1,648 

158 

89 

954 

962 


22,067 

328 

1,869 


7,227 

539 

1,060 

679 

34 

330 

1,065 

1,030 

4.948 

3,845 

1,943 


260 

7,554 

4,474 

424 

200 

276 

287 


Cities  and  villages.  There  are  altogether  9 cities,  67  villages 
and  2 incorporated  towns  in  Cook  County.  In  addition  to  Chicago, 
there  are  5 other  cities,  39  villages  and  1 incorporated  town  within 
the  Sanitary  District ; and  there  are  3 cities,  28  villages  and  1 in- 
corporated town  in  the  county  outside  of  the  Sanitary  District. 

Cities  in  Cook  County. 

Name.  Date  of  Incorporation.  Population  1910. 

Chicago  1833 2,185,283  In  Sanitary  District 

Evanston  1857 24,978  In  Sanitary  District 

Chicago  Heights  1892 14,525 

Blue  Island  1843 8,043  In  Sanitary  District 


929 


Cities  in  Cook  County — Concluded. 

Name.  Date  of  Incorporation.  Population  1910. 

Harvey  1895 7,227  In  Sanitary  District 

Berwyn  1901  5,841  In  Sanitary  District 

West  Hammond 1893 4,948  In  Sanitary  District 

Park  Ridge  1873 2,009 

Elgin  (small  part)  1854 25,976 

All  of  the  cities,  except  Chicago,  Harvey  and  Elgin  are  governed 
under  the  general  provisions  of  the  Cities  and  Villages  Act,  with  a 
mayor,  city  clerk,  treasurer,  attorney,  and  police  magistrates  as  elective 
city  officers,  and  aldermen  elected  by  wards.  Evanston  and  Chi- 
cago Heights  have  each  14  aldermen,  Blue  Island  and  Berwyn 
each  10,  West  Hammond  8,  and  Park  Ridge  6.  Harvey  and  Elgin 
have  adopted  the  commission  form  of  city  government  with  5 
elected  commissioners ; and  also  elect  police  magistrates.  Exclud- 
ing Chicago  and  Elgin  (only  a small  part  of  which  is  in  Cook 
County)  there  are  118  elective  city  officials.  Of  these,  88  are  elected 
in  cities  within  the  sanitary  district. 


Villages  in  Cook  County. 


Name. 

Arlington  Heights 
Barrington  (partly  in  Lake  County) 

Bartlett  

Beilwood  

Broad  View  

Brookfield  

Burnham  

Burr  Oak  

Cicero  (incorporated  town) 

Chicago  Ridge  

Des  Plaines  

Dolton  

East  Hazel  Crest 

Elmwood  Park  

Evergreen  Park  

Forest  Park  

Franklin  Park  

Glencoe  

Glen  View  

Glenwood  

Gross  Point  (dissolved) 

Hazel  Crest  

Hillside  

Hinsdale  (small  part) 

Hodgkins  

Homewood  

Justice  

Kenilworth  

La  Grange  

La  Grange  Par  k 

Lansing  

Lemont  

Lyons  ....  

Matteson  

Maywood  

Melrose  Park  ’ 

Morton  Grove  .. 

Mount  Greenwood  ’ 

Mount  Prospect 

Niles  

Niles  Center  [[ 

Oak  Lawn  

Oak  Park  . . . 

Orland  Park  [ 

Palatine  (incorporated  town) 

Palos  Park  

Phoenix  V. 

Posen  

Riverdale  .....'*  P ] 


Date  of  Incorporation.  Population  1910, 


1887 

1,943 

1865 

1,444 

1891 

408 

1900 

943 

1913 

1893 

2,186 

1907 

328 

1912 

1867 

14,557 

1914 

1873 

2,348 

1892 

1,869 

1918 

1914 

1893 

’ "424 

1907 

6,594 

1892 

683 

1869 

1,899 

1899 

652 

1903 

581 

1874 

1,008 

1911 

1905 

328 

1896 

480 

1893 

713 

1911 

1896 

881 

1879 

5,282 

1892 

1,131 

1893 

1,060 

1873 

2,284 

1888 

1.483 

1889 

461 

1881 

8,033 

1882 

4,806 

1895 

836 

1907 

276 

1917 

1899 

569 

1888 

568 

1909 

287 

1901 

19,444 

1892 

369 

1869 

1,144 

1914 

1900 

679 

1900 

343 

1892 

917 

930 


Villages  in  Cook  County — Concluded. 


Name. 

River  Forest  

River  Grove  

Riverside  

Riverview  

Robbins  

Schiller  Park  

Shermerville  

South  Chicago  Heights.... 

South  Holland  

Spring  Forest  

Steger  (partly  in  Will  Co.) 

Stickney  

Summit  

Tessville  

Thornton  

Tinley  Park  

Western  Springs  

Wheeling  

Wilmette  

Winnetka  

Worth  


Dates  of  Incorporation. 

Population 

1880 

2,456 

418 

1,702 

312 

441 

552 

1,065 

334 

2,161 

949 

359 

1,030 

309 

905 

260 

1872 

4,943 

3,168 

1910. 


The  village  of  Oak  Park,  with  a population  of  19,444  in  1910, 
and  the  incorporated  town  of  Cicero,  with  a population  of  14,557 
in  1910,  are  larger  than  most  of  the  cities  in  Cook  County  outside 
of  Chicago.  In  1910,  six  other  villages  had  more  than  3,000  popu- 
lation, and  15  more  had  over  1,000  population  each.  Most  of  the 
villages  are  governed,  under  the  general  provisions  of  the  cities 
and  villages  act,  by  a president  and  board'  of  six  trustees,  elected 
for  two-year  terms,  three  trustees  elected  each  year.  A clerk  is 
also  elected  each  year ; and  a police  magistrate  may  be  elected  for 
a four-year  term.  Police  magistrates  are  elected  in  62  villages,  all 
except  East  Hazel  Crest,  Hodgkins,  Niles,  Orland,  Palatine,  Palos 
Park,  and  South  Holland. 

The  incorporated  towns  of  Cicero  and  Palatine  and  the  village 
of  Winnetka  are  governed  under  special  acts  passed  in  1867  and 
1869,  amended  by  later  legislation. 

The  villages  of  Forest  Park  and  Palos  Park  have  adopted  the 
commission  form  of  government,  with  5 elected  commissioners. 

The  total  number  of  elected  officers  in  the  villages  and  in- 
corporated towns  is  approximately  608.  Of  these  352  are  elected 
in  villages  within  the  Sanitary  District. 


Park  districts.  Park  administration  in  Chicago  and  Cook 
County  presents  an  extraordinary  list  of  separate  authorities,  un- 
paralled  in  this  or  any  other  country.  The  entire  county  forms  a 
forest  preserve  district,  under  the  control  of  the  county  board.  Within 
the  city  there  are  three  large  park  districts  and  14  small  park  districts, 
each  with  a separate  board  of  commissioners.  There  are  some  parts  of 
the  city  not  in  any  of  these  park  districts  ; while  the  city  government 
maintains  a large  number  of  small  parks  and  playgrounds,  most  of 
which  are  within  the  territory  under  the  jurisdiction  of  the  separate 
park  boards.  Outside  of  Chicago  and  within  the  Sanitary  District, 
there  are  nine  other  park  districts ; and  outside  the  Sanitary  District 
are  two  other  park  districts  (Park  Ridge  and  Des  Plaines).  Alto- 


931 


gether  (including  the  forest  preserve  district)  there  are  29  distinct 
park  authorities  in  the  county. 

The  three  large  park  districts  in  Chicago  were  organized  under 
special  acts  of  the  legislature  passed  in  1869.  At  that  time  each  of 
these  districts  included  territory  not  within  the  city  limits;  but  all  of 
these  districts  are  now  within  Chicago.  The  South  Park  Commis- 
sioners are  appointed  by  the  judges  of  the  circuit  court  of  Cook 
County.  The  West  Park  Commissioners  and  the  Lincoln  Park  Com- 
missioners are  appointed  by  the  Governor  of  the  state. 

The  small  park  districts  have  been  organized  under  a general 
park  act,  to  provide  park  facilities  in  sections  not  included  in  any  of 
the  other  park  districts.  They  are  organized  on  petition  and  approval 
by  the  voters  of  the  proposed  district.  Each  district  has  5 elected 
commissioners,  one  elected  each  year  for  a term  of  5 years., 

There  are  89  park  commissioners  in  the  city  of  Chicago ; 
and  55  more  in  the  other  park  districts  within  the  county.  There  are 
125  elected  park  commissioners,  70  within  the  city  and  55  more  within 
the  rest  of  the  county. 

The  South  Park  District  and  each  of  the  small  park  districts  are 
municipal  corporations  and  levy  all  of  their  taxes  directly.  The  West 
Chicago  Park  District  is  also  a municipal  corporation  and  levies  di- 
rectly part  of  the  taxes  it  expends ; the  remainder  is  levied  by  the 
town  of  West  Chicago.  The  Lincoln  Park  Board  is  not  a municipal 
corporation  and  has  no  power  to  levy  taxes ; and  its  principal  sup- 
port is  from  taxes  levied  by  the  towns  of  North  Chicago  and  Lake 
View. 

There  is  a wide  variation  in  the  amounts  which  the  several  park 
boards  are  able  to  raise  by  taxation ; and  the  variation  is  not  at  all  in 
proportion  either  to  the  park  acreage  or  to  the  population  within  the 
respective  districts.  The  valuable  property  situated  in  the  down 
town  business  section  of  Chicago  lies  within  the  South  Park  District ; 
and  all  of  the  park  taxes  on  this  property  are  under  the  control  of  the 
South  Park  Commissioners.  The  greatest  density  of  population,  and 
hence  the  greatest  need  for  park  facilities,  is  within  the  territory  of 
the  West  Park  District,  where  property  values  are  much  lower.  As  a 
result  of  this  situation  there  is  an  inequitable  distribution  of  park 
facilities. 

The  South  Park  District  with  about  one-third  of  the  population 
and  less  than  half  of  the  area  of  the  city  has  three-fifths  of  the  as- 
sessed valuation,  and  two-thirds  of  the  total  park  area.  A tax  rate  of 
50  cents  on  the  $100  raises  one-half  of  the  total  park  taxes  for  the 
city.  The  West  Park  District  with  about  two-fifths  of  the  population 
has  only  about  one-fifth  of  the  assessed  valuation,  and  one-fifth  of  the 
park  area  (about  one-third  of  that  of  the  South  Park  District).  A tax 
rate  of  about  80  cents  raises  only  about  30  per  cent  of  the  total  park 
taxes  for  the  city. 

In  the  small  park  districts  within  Chicago,  the  park  tax  rates 
varied  in  1918  from  28  cents  on  the  $100  in  the  Albany  Park  District 
to  57  cents  in  the  Ravenswood  Manor-Gardens  Park  District.  In 
park  districts  outside  Chicago,  the  park  tax  rates  varied  in  1918 


932 


from  33  cents  on  the  $100  in  the  Clyde  Park  District  to  85  cents  in 
the  Wilmette  Park  District. 


School  and  High  School  districts.  Outside  of  Chicago,  there 
are’  180  school  districts  in  Cook  County.  Of  these,  nine  are  union 
districts  partly  in  other  counties.  Forty-seven  districts  are  entirely 
within  the  Sanitary  District  and  nineteen  are  partly  within  and  partly 
outside  of  the  Sanitary  District. 

The  towns  of  Oak  Park  and  River  Forest  are  co-terminous  with 
the  school  districts  and  villages  of  the  same  names..  One  school  dist- 
rict includes  most  of  the  town  of  Cicero  and  part  of  the  town  of 
Stickney.  The  town  and  city  of  Evanston  includes  one  school  district 
and  part  of  two  others.  The  other  towns  have  from  4 to  14  school 
districts : Lyons  and  Worth  have  each  10 ; Bloom,  Bremen  and  Leyden, 
each  11 ; Barrington,  12 ; and  Thornton,  14. 

There  are  fifteen  high-school  districts  in  the  county  and  outside 
of  Chicago,  and  the  remainder  of  the  county  forms  a non-high  school 
district.  Eight  high  school  districts  are  in  two  or  more  towns.  Two 
towns  with  no  high  school  district  are  partly  in  the  city  of  Chicago 
(Niles  and  Norwood  Park)  ; one  (Hanover)  is  partly  in  the  city  of 
Elgin ; and  three  local  school  districts  maintain  high  schools.  Nine 
towns  have  no  part  within  a high  school  district — Bremen,  Leyden, 
Northfield,  Orland,  Palos,  Rich,  and  Schaumburg.  Three  of  these 
(Bremen,  Leyden  and  Northfield)  are  partly  within  the  Sanitary 
District.  Twenty  towns  are  wholly  or  in  part  within  the  non-high 
school  district. 

High  School  Districts  in  Cook  County. 

Arlington  Heights  (Elk  Grove,  Wheeling  and  Palatine  townships) 
Bloom  Township 

Blue  Island  (Calumet  and  Worth  townships) 

Evanston  Township 

Lemont  Township  (Union  district  with  DuPage  County) 

Lyons  Township  (also  LaGrange  Park) 

Maine  Township 

Mount  Prospect  (Elk  Grove  and  Wheeling  townships) 

New  Trier  Township 
Oak  Park — River  Forest 
Palatine 

Proviso  Township 

Riverside — Brookfield  Township 

Morton  J.  Sterling  (Berwyn,  Cicero  and  Stickney) 

Thornton  Township 

School  taxes  in  the  suburban  cities  and  villages  are  much  higher 
than  in  the  city  of  Chicago.  The  total  school  tax  authorized  for  the 
city  of  Chicago  is  lower  than  the  general  school  tax  for  other  school 
districts;  while  high  school  districts  in  such  suburban  places  are  also 
authorized  to  levy  an  additional  tax  for  high  schools. 


933 


Each  school  district  of  less  than  1,000  inhabitants  elects  a board 
of  three  school  directors.  Each  district  of  more  than  1,000  inhabitants 
elects  a board  of  education,  consisting  of  a president  and  six  members, 
and  three  additional  members  for  each  additional  10,000  inhabitants 
to  a maximum  of  15  members.  There  are  35  districts  with  boards 
of  seven  members,  and  5 districts  with  boards  of  ten  members  each. 
In  each  high  school  district  there  is  elected  a high  school  board  of 
education  of  five  to  seven  members.  In  the  non-high  school  district 
there  is  a board  of  three  elected  members,  and  the  county  superin- 
tendent of  schools,  who  is  ex-officio  a member  and  secretary,  but 
with  no  vote.  The  board  in  the  non-high  school  district  has  for  its 
only  function  to  levy  a tax  to  pay  the  tuition  of  residents  of  the  dist- 
rict attending  any  recognized  high  school.  As  noted  in  connection 
with  the  towns,  each  of  the  28  school  townships  outside  of  Chicago 
elects  three  school  trustees. 

School  trustees  in  school  townships  co-terminous  with  towiis  are 
elected  at  the  annual  town  meeting.  In  other  school  townships  they 
are  elected  on  the  second  Saturday  in  April,  which  is  also  the  date  for 
electing  high  school  boards  of  education.  Boards  of  school  directors 
and  boards  of  education  are  elected  on  the  third  Saturday  of  April. 

The  elective  district  school  officers  in  Cook  County  are  shown 


below : 

140  Boards  of  3 School  Directors 420 

35  Boards  of  Education,  7 each 245 

5 Boards  of  Education,  10  each 50 

15  High  School  Boards 83 

1 Non-High  School  Board 3 


801 


Library  Boards.  In  addition  to  the  Chicago  Public  Library, 
there  are  public  libraries  in  4 cities,  1 township  and  13  villages  in 
Cook  County — a total  of  18  library  boards  in  Cook  County  outside  of 
Chicago.  There  are  also  public  libraries  and  library  boards  in  the 
city  of  Elgin  and  the  Village  of  Hinsdale,  small  parts  of  which  are 
in  Cook  County. 

The  city  library  boards  consist  of  nine  members,  appointed  by 
the  mayor  with  the  consent  of  the  city  council.  Village  and  town- 
ship library  boards  have  six  members,  elected  by  popular  vote.  Li- 
brary taxes  in  cities  are  levied  by  the  city  council,  but  library  taxes 
for  both  cities  and  villages  are  levied  outside  of  the  regular  city  and 
village  tax;  and  the  library  boards  have  exclusive  control  over  the 
libraries  and  their  funds. 


Bloom  Township 
Blue  Island  City 
Chicago  City 
Elgin  City 
Evanston  City 
Harvey  City 
Park  Ridge  City 


Public  Libraries  in  Cook  County. 


Brookfield  Village 
Des  Plaines  Village 
Forest  Park  Village 
Franklin  Park  Village 
Glencoe  Village 
Hinsdale  Village 
La  Grange  Village 


Maywood  Village 
Melrose  Village 
Oak  Park  Village 
River  Forest  Village 
Summit  Village 
Wilmette  Village 
Winnetka  Village 


934 


The  six  city  boards  have  a total  of  54  members;  the  fifteen  village 
and  township  boards  aggregate  90  elected  members. 


Drainage  Districts.  A considerable  number  of  drainage  dis- 
tricts have  been  organized  in  Cook  County,  under  the  various  pro- 
visions of  the  drainage  laws.  Owing  to  the  different  and  complicated 
methods  for  organizing  such  districts  it  is  difficult  to  secure  a complete 
list;  and  it  is  still  more  difficult  to  determine  what  districts  are  still 
in  active  operation. 

In  the  report  on  Water  Resources  of  Illinois,  prepared  and  pub- 
lished for  the  Illinois  Rivers  and  Lakes  Commission  in  1914,  there 
is  given  a list  of  drainage  districts  in  the  state,  which  includes  13  in 
Cook  County.  A summary  table  for  10  districts  with  a total  area  of 
16,406  acres,  showed  that  39^2  miles  of  open  ditch  had  been  con- 
structed and  4 miles  of  tile  laid,  with  total  assessments  of  $158,817. 

Inquiries  made  in  the  summer  of  1919  at  the  county  offices,  and 
to  town  clerks,  drainage  commissioners  and  other  sources,  have  se- 
cured information  of  the  following  27  drainage  districts  in  Cook 
County : 


Addison  Creek  Drainage  District  Proviso  and  Leyden  townships.  . 

Bremen  township,  Drainage  District  No.  1 

Bremen  township,  Drainage  District  No.  3 

Bremen  township,  Drainage  District  No.  4 

Buffalo  Creek  Drainage  District  Wheeling  and  Palatine  townships 
Calumet  Union  Drainage  District  No.  1 Thornton  and  Bremen  town- 
ships   

Elk  Grove  township.  Drainage  District  No.  1 

Hanover  township,  Drainage  District  No.  1 

Hanover  township,  Drainage  District  No.  .2 

Maine  township,  Drainage  District  No.  1 

Maine  township,  Drainage  District  No.  2 

Maine  township,  Drainage  District  No.  5 

New  Trier  township,  Drainage  District  No.  1 

Niles  township,  Drainage  District  No.  2 

North  Creek  Drainage  District  Thornton  and  Bloom  townships.  . . . 

Orland  township,  Drainage  District  No.  2. 

Orland  township.  Drainage  District  No.  4 

Palatine  township.  Drainage  District  Palatine  and  Barrington 

townships  

Rich  township  Drainage  District  No.  2 

Salt  Creek  Drainage  District  Palatine  township  and  DuPage  County 
Union  Drainage  District  No.  1 Northfield  and  Deerfield  township 

(Cook  and  Will  Counties) 

Union  Drainage  District  No.  1 of  Rich  and  Frankfort  townships 

(Cook  and  Lake  Counties)  

Union  Drainage  District  No.  3 of  Orland  township  and  No.  2 of 

Bremen  

Union  Drainage  District  No.  6 of  Orland  township  and  Frankfort 

(Will  County)  

Weller  Creek  Drairage  District:  Wheeling,  Elk  Grove,  Maine  and 

Palatine  townships  

Westmoreland  Drainaae  District:  Niles  and  New  Trier  townships 
Wheeling  Drainage  District:  Wheeling,  Palatine  and  Elk  Grove 
townships  and  Lake  Co 


12,000  acres 


2,500 

acres 

500 

acres 

328 

acres 

190 

acres 

830 

acres 

833 

acres 

900 

acres 

1,600 

acres 

19,000 

acres 

1.107 

acres 

1,200 

acres 

6.000  acres 
2,500  acres 

3.000  acres 


12,000  acres 
1,600  acres 

5,000  acres 


Four  of  these  drainage  districts  are  within  the  Sanitary  District 
of  Chicago — the  New  Trier  district,  Niles  district  No.  2,  Westmore- 
land district,  and  the  Nortlffield-Deerfield  district. 

For  each  drainage  district  organized  under  the  act  of  1879,  three 
drainage  commissioners  are  appointed  by  the  county  court.  For  each 


935 


district  organized  under  the  act  of  1885,  there  are  three  commissioners, 
one  elected  each  year  for  a term  of  three  years. 


Congressional  and  Legislative  Districts.  In  addition  to  the 
numerous  governments  for  local  purposes,  Chicago  and  Cook  County 
are  also  divided  into  districts  for  the  election  of  members  of  Congress 
and  of  the  General  Assembly.  There  are  6 congressional  districts 
entirely  within  the  city  of  Chicago,  and  4 others  partly  in  Chicago  and 
partly  in  Cook  County  outside  of  the  city,  one  district  also  including 
Lake  County.  There  are  14  senatorial  districts,  for  the  election  of 
state  senators  and  representatives  in  the  city  of  Chicago,  and  five 
others  in  Cook  County,  four  of  the  latter  being  partly  in  the  city  and 
partly  outside. 

The  boundaries  of  these  congressional  and  legislative  districts 
do  not  correspond  with  each  other,  nor  with  the  ward  lines  for  the 
election  of  aldermen,  nor  with  any  of  the  local  government  areas. 
These  add  further  to  the  complexities  of  the  political  and  govern- 
mental situation  and  to  the  problems  of  the  voters  on  election  day. 


The  Voter’s  Burden.  In  the  table  below  is  summarized  the 
data  as  to  the  burden  placed  on  the  voter  by  the  enormous  number 
of  public  officials  elected  in  connection  with  the  numerous  and  over- 
lapping governmental  bodies  in  Chicago  and  Cook  County.  There  is 
an  aggregate  of  2,557  officials  voted  for  in  Cook  County,  of  which 
417  are  within  the  City  of  Chicago,  and  1,640  within  the  Sanitary  Dis- 
trict. Each  male  elector  in  Chicago  is  expected  to  vote  in  a brief  series 
of  years  for  178  different  officials,  .and  in  some  parts  of  the  city  the 
number  is  187.  In  other  cities  and  in  villages  in  Cook  County  each 
male  elector  is  expected  to  vote  for  from  172  to  197  different  officials. 

At  the  presidential  election  in  November,  1916,  each  male  elector 
in  Chicago  was  expected  to  vote  for  71  different  officials,'  including 
presidential  electors;  and  at  the  general  election  in  November,  1918, 
for  55  different  officials.  Male  electors  in  Cook  County  outside  of 
Chicago  were  asked  to  vote  for  61  different  officials  at  the  presiden- 
tial election  in  November,  1916,  and  for  35  at  the  general  election  in 
November,  1918.  Other  officials  are  elected  at  city,  village,  township, 
school  and  judicial  elections  held  at  various  times  from  March  to 
September.  Including  primary  elections  there  are  in  Chicago  seven 
elections  in  presidential  years ; and  in  other  cities  and  in  villages  there 
aref  from  eight  to  ten  elections  in  such  years. 


936 


Public  Officials  Voted  for  in  Cook  County. 


Aggregate. 

Each  male  elector  may  vote  for 

In 

Chi- 

cago. 

Out- 

side 

Chi- 

cago. 

Nov.  1916 

Nov.  J918. 

Cook 

county. 

In  Chi- 
cago. 

In  sani- 
tary 
dis- 
trict. 

In  Chi- 
cago. 

Out- 

side 

Chi- 

cago. 

In  Chi- 
cago. 

Out- 

side 

Chi- 

cago. 

United  States  gov- 

ernment   

43 

43 

43 

34 

34 

32 

32 

4 

4 

State  officers 

18 

18 

18 

18 

18 

10 

10 

5 

5 

General  Assembly. 

76 

72 

76 

4 

4 

4 

4 

4 

4 

County  officers 

79 

74 

79 

74 

69 

11 

11 

23 

18 

Sanitary  district.  .. 

10 

10 

10 

10 

10 

4 

4 

4 

4 

City  of  Chicago 

106 

106 

106 

38 

11 

14 

Other  cities, . . . 

118 

- 88 

1 

Villages 

606 

352 

| 6 to  15 

Townships 

402 

24 

261 

(a)  4 

9 to  18 

Park  districts 

125 

70 

115 

(a)  5 

5 

Library  boards 

90 

6 

6 

School  districts.... 

715 

359 

3 to  10 

High  schooi  dis- 

tricts  

86 

55 

5 

Drainage  districts. 

81 

12 

3 

Totals 

2, 557 

417 

1,640 

178  to  187 

172  to  197 

72 

61 

54 

35 

(a)  In  some  parts  of  Chicago, 


III.  PROPOSALS  FOR  UNIFICATION. 


Constitutional  Convention  of  1870.  In  the  constitutional  con- 
vention of  1869-70,  some  attention  was  given  to  proposals  for  author- 
izing large  cities  to  be  formed  into  separate  counties.  Early  in  the  con- 
vention (on  January  13,  1870)  Mr.  E.  M.  Haines  of  Lake  County  in- 
troduced a resolution,  which  was  referred  to  the  Committee  on  Coun- 
ties as  follows : “Resolve d that  cities  containing  a population  exceeding 
300,000  may  be  erected  into  a county.”1 

On  the  next  day,  Mr.  Cameron  of  Cook  County  introduced  a coun- 
ter resolution,  in  opposition  to  that  of  Mr.  Haines,  which  he  considered 
presented  “a  pernicious  principle”,  as  follows  :2  “Resolved  that  no 
township  in  any  county  shall  be  transferred  from  one  county  to  an- 
other without  the  assent  of  a majority  of  the  voters  of  said  township”. 

Later  Mr.  Cameron  presented  several  petitions  from  towns  in 
Cook  County  opposing  any  change  in  county  boundaries ; and  stated 
that  the  Cook  County  delegation  was  opposed  to  any  change. 3 

A minority  report  was  presented  by  Mr.  Abbott  of  the  Committee 
on  Counties,  to  authorize  the  formation  of  new  counties  with  the  con- 
sent of  two-thirds  of  the  voters  of  the  proposed  county,  without  re- 
quiring the  consent  of  the  county  from  which  it  would  be  detached. 
In  Committe  of  the  whole  (April  18)  this  was  not  agreed  to.  Several 
amendments  to  authorize  the  transfer  of  parts  of  counties,  without  the 
consent  of  the  county  from  which  they  would  be  detached,  were  also 
defeated. 4 

Somewhat  later  (April  27,  1870)  when  the  article  on  counties 
was  being  considered  in  the  convention,  Mr.  Turner  of  Stephenson 
County  proposed  an  amendment  to  section  1,  which  was  agreed  to  with- 
out debate  by  a vote  of  26  to  18,  as  follows : 

“But  any  city  having  a population  of  200,000  or  more  may  be  or- 
ganized into  a separate  county.”  5 

On  the  next  day,  Mr.  Turner  moved  to  reconsider  this  amendment, 
because  of  objections  from  Cook  County  members;  but  the  motion  was 
held  out  of  order,  and  it  was  suggested  that  the  matter  could  be  taken 
up  later.  Mr.  Anthony  of  Cook  County  objected  to  the  amendment,  as 
not  wanted  in  Cook  County  and  likely  to  cause  trouble.  Mr.  Haines  of 
Lake  County  spoke  in  favor  of  the  amendment. 6 

The  day  following,  at  the  end  of  the  convention  debate  on  the 
article  on  counties,  Mr.  Skinner  of  the  28th  district  (Adams  County, 


1 Proceedings  and  Debates,  I,  180. 

2 Proceedings  and  Debates,  I,  192. 

3 Proceedings  and  Debates,  I,  306,  851. 

4 Proceedings  and  Debates  I,  307;  II,  1325-28. 

5 Proceedings  and  Debates  II,  1521. 

6 Proceedings  and  Debates  II,  1535-36. 


938 


etc.)  offered  an  additional  section  providing  that  cities  of  over  50,000 
population  might  be  created  into  counties.  This  was  laid  on  the  table 
by  a vote  of  41  to  19.  Three  Cook  County  members  (Anthony,  Cool- 
baugh  and  Medill)  voted  for  the  motion  to  lay  on  the  table;  the  other 
Cook  County  members  were  absent  or  not  voting. 7 

On  May  11,  1870,  when  considering  the  report  of  the  Committee 
on  Revision  and  Adjustment,  Mr.  Cameron  of  Cook  County  moved  the 
suspension  of  the  rules  so  as  to  strike  out  the  provision  authorizing 
cities  of  over  200,00  population  to  be  created  as  separate  counties.  He 
stated  that  he  had  presented  twenty  petitions  against  such  a clause ; and 
that  it  would  be  unjust  to  the  towns  outside  of  Chicago.  Mr.  Turner 
referred  to  his  earlier  attempt  to  reconsider  his  own  motion ; and 
stated  that  at  that  time  Mr.  C'oolbaugh,  of  Cook  County  had  mentioned 
a resolution  of  the  Cook  County  Supervisors  in  favor  of  such  a pro- 
vision. Mr.  Medill  of  Cook  County  said  that  the  supervisors  had 
passed  a resolution  in  favor  of  creating  Chicago  and  some  adjoining 
townships  as  a separate  county,  as  the  result  of  a quarrel  in  the  board ; 
but  that  they  were  ashamed  of  it. 

Mr.  Cameron’s  motion  to  suspend  the  rules  was  then  carried ; the 
question  was  reconsidered,  and  the  motion  to  strike  out  the  provision 
was  agreed  to  without  a record  vote. 8 

It  may  be  noted  that  if  Chicago  had  been  organized  as  a separate 
county  in  1870  it  would  have  included  only  the  city  as  it  existed  at  that 
time,  or  only  about  one-sixth  of  the  present  area  of  Chicago. 


Constitutional  Amendment  of  1904.  Various  proposals  for 
consolidation  of  local  governments  have  been  presented  from  time  to 
time,  culminating  in  the  adoption  of  section  34  of  Article  IV  as  an 
an  amendment  to  the  state  constitution.  The  annexations  to  the  city 
of  Chicago  in  1889  added  to  the  complexities  of  local  organizations, 
and  seem  to  have  called  attention  to  the  need  for  further  changes. 
A constitutional  amendment  authorizing  consolidation  was  advocated 
in  1891 ; but  no  action  was  taken.  Mayor  Washburne  in  his  message 
of  1892  favored  the  abolition  of  township  collection  of  taxes  and  the 
union  of  county  and  city  government. 

The  assessment  law  of  1898  established  a county  board  of  as- 
sessors and  a county  board  of  review,  and  eliminated  the  township 
assessors  in  the  towns  within  the  city  of  Chicago.  An  optional  act  of 
1901,  soon  adopted  by  Chicago,  did  away  with  township  collectors 
for  the  towns  in  Chicago.  These  two  measures  practically  elimina- 
ted the  separate  town  governments.  Further  changes,  however,  could 
only  be  carried  out  by  amending  the  state  constitution. 

In  1898  the  Civic  Federation  of  Chicago  appointed  a consolidation 
committee  of  100  from  various  organizations,  with  Judge  M.  F.  Tuley 
as  chairman.  This  Committee  agreed  to  a proposed  amendment,  which 
was  submitted  to  the  legislature  in  1899.  In  his  annual  message  of 


7 Proceedings  and  Debates  IT,  1557. 

8 Proceedings  and  Debates  II,  1835-36. 


939 


that  year,  Mayor  Carter  H.  Harrison,  urged  the  consolidation  of  lo- 
cal governments  within  the  city  limits,  and  recommended  a council 
committee  on  consolidation. 

On  April  11,^1899,  the  House  Committee  on  Judiciary  reported 
a proposed  amendment  to  Article  X,  Section  7.  This  authorized  the 
general  assembly  to  provide  for  the  consolidation  of  city  and  county 
government  within  the  present  or  future  limits  of  Chicago,  and  also 
for  the  extension  of  the  city  “so  as  to  include  all  of  the  County  of 
Cook”,  subject  to  a referendum  to  the  voters  of  the  city  and  of  the 
county  outside  of  Chicago.  Provisions  might  also  be  made  for  sub- 
ordinate local  governments  by  districts;  and  prohibition  of  the  liquor 
traffic  in  any  local  district  should  not  be  repealed  or  impaired. 

An  amendment  to  strike  out  the  words  “so  as  to  include  all  the 
county  of  Cook”  was  adopted  by  a vote  of  75  to  27,  the  Cook  County 
members  voting  for  this  amendment  22  to  13.  Several  other  minor 
amendments  were  adopted.  But  no  further  action  was  taken  on  this 
proposed  amendment. 

In  1901  another  proposed  amendment  was  offered  in  the  legis- 
lature, authorizing  the  consolidation  of  local  governments  in  the  city 
of  Chicago,  and  the  formation  of  a county  of  Chicago  subject  to  a 
local  referendum  in  Chicago  and  the  part  of  Cook  County  outside 
of  the  city.  Mayor  Harrison,  in  his  annual  message  of  this  year,  re- 
newed his  recommendations  for  consolidation.  But  no  action  was 
taken  on  this  matter  in  the  general  assembly. 

In  September  1902,  a committee  of  the  Civic  Federation  of  Chi- 
cago submitted  an  extended  report  on  Chicago  and  the  constitution, 
favoring  a separate  amendment  relating  to  local  government  in  Chi- 
cago rather  than  the  calling  of  a constitutional  convention.  On  Octo- 
ber 28,  a local  convention  was  called,  consisting  of  about  70  delegates 
from  business  and  civic  organizations  (including  the  Civic  Federation, 
the  Chicago  Bar  Association  and  the  Union  League  Club)  and  also 
from  the  city  and  county  government.  This  convention  agreed  to  a 
proposed  amendment  authorizing  the  consolidation  of  local  taxing 
bodies,  with  provisions  relating  to  a municipal  court,  the  abolition  of 
justices  of  the  peace,  and  revenue  and  borrowing  powers. 

The  proposed  amendment  was  introduced  in  the  Senate  on 
January  20,  1903,  by  Mr.  Campbell,  and  in  the  House  on  March  4,  by 
Mr.  Wilkerson.  It  provided  for  the  consolidation  of  county  and  other 
local  governments  in  Chicago,  and  for  the  creation  of  not  more  than 
two  counties  out  of  the  part  of  Cook  County  outside  of  Chicago,  sub- 
ject to  local  referendum,  which  on  county  consolidation  was  to  be  sub- 
mitted to  the  city  and  to  the  part  of  the  county  outside  of  Chicago. 

On  January  29,  another  proposed  amendment  was  introduced 
by  Senator  Humphrey  of  Cook  County.  This  was  much  shorter  and 
authorized  the  general  assembly  to  provide  for  the  consolidation  of 
town,  park,  school  and  other  local  governments  within  cities,  and  for 
the  abolition  of  justices  of  the  peace  in  cities  of  over  150,000  popu- 
lation. 'I 

On  March  12,  the  Senate  Judiciary  Committee  reported  a sub- 
stitute (Senate  Joint  Resolution  No.  12)  relating  to  Chicago,  but  omit- 


ting  the  provisions  of  the  original  resolution  relating  to  county  govern- 
ment. This  was  passed  by  the  Senate  on  March  18  by  a vote  of  39  to  1. 

The  original  House  resolution  was  reported  favorably  by  the 
House  Committee  on  March  17.  When  taken  up  on  April  4 an  amend- 
ment to  limit  Chicago  representation  was  laid  on  the  table  by  a vote 
of  57  to  47.  On  passage,  the  resolution  received  a vote  of  68  to  15 ; 
and  lacking  the  required  two-thirds  vote  further  consideration  was 
postponed.  Taken  up  again  on  April  22,  the  provisions  of  Senate  Joint 
Resolution  No.  12  were  offered  by  Mr.  Wilkerson  as  a substitute 
and  adopted.  Amendments  to  limit  Chicago  representation  were  de- 
feated by  votes  of  57  to  65,  and  62  to  75;  and  the  substitute  resolution 
was  passed  by  a vote  of  115  to  3.  On  the  same  day  the  Senate  con- 
curred, by  a vote  of  47. 

After  an  active  campaign,  this  amendment  was  ratified  at  the  elec- 
tion in  November,  1904,  by  a vote  of  678,393  to  94,038  as  section  34  of 
Article  IV.  The  vote  in  Cook  County  was  286,565  to  20,334. 


Consolidation  Measures.  Following  the  adoption  of  the  con- 
stitutional amendment  of  1904,  an  act  providing  for  a municipal  court 
in  the  city  of  Chicago  and  abolishing  justices  of  the  peace,  police  mag- 
istrates and  constables  in  that  city,  was  passed  by  the  general  assembly 
in  1905,  and  adopted  by  popular  vote. 

To  develop- further  the  plans  for  consolidation,  a Chicago  char- 
ter convention  was  organized  by  resolution  of  the  Chicago  Council, 
June  19,  1905.  This  convention  consisted  of  15  members  of  the  coun- 
cil, 15  members  of  the  legislature,  15  citizens  appointed  by  the  mayor, 
15  citizens  appointed  by  the  governor,  and  two  representatives  each 
from  the  board  of  county  commissioners,  sanitary  district  trustees, 
board  of  education,  library  board  and  the  three  large  park  boards.  A 
comprehensive  charter  was  prepared,  providing  for  a consolidated 
municipal  government,  combining  the  powers  of  the  city,  board  of  ed- 
ucation, township,  park  and  other  local  governments  having  jurisdic- 
tion confined  to  or  within  the  limits  of  the  city  of  Chicago.  It  was  ex- 
pressly provided  that  the  consolidation  would  not  apply  to  drainage, 
improvement  or  forest  preserve  districts.  The  charter  did  not  include 
th  *unty  or  the  sanitary  district,  nor  did  it  consolidate  the  towns  or 
other  local  districts  partly  in  and  partly  outside  of  the  city.  Provision 
was  made  for  a board  of  park  commissioners,  a board  of  education  and 
a library  board. 

The  proposed  charter  was  introduced  in  the  general  assembly  in 
1 >07,  where  it  was  freely  amended,  notably  by  inserting  a new  appor- 
onment  of  wards  for  the  election  of  aldermen,  which  could  not  be 
ringed  after  1920.  These  changes  aroused  opposition  in  Chicago ; 
and  when  the  new  charter  was  submitted  to  popular  vote  it  was  de- 
feated. 

After  several  years,  another  but  less  comprehensive  consolidation 
act  was  prepared  and  was  passed  by  the  General  Assembly  of  1913  ; but 
this  was  vetoed  by  Governor  Dunne.  Two  years  later  a similar  meas- 


941 


are,  modified  to  meet  objections,  was  prepared  and  passed.  This  pro- 
vided that : 

“All  powers  and  functions  not  specifically  abrogated  by  this  act 
which  are  now  vested  in  the  city,  town,  township,  park,  park  district  or 
other  local  governments  and  authorities  having  jurisdiction  confined  to 
or  within  the  city  of  Chicago  or  any  part  thereof,  shall  be  vested  and 
consolidated  in  the  municipal  government  of  the  city  of  Chicago,  and 
for  that  purpose  all  municipal  corporations  and  quasi  municipal  cor- 
porations other  than  the  city  of  Chicago  whose  jurisdiction  is  confined 
as  aforesaid  shall  be  dissolved  and  abrogated  and  shall  be  merged  in 
and  consolidated  with  the  city  of  Chicago.”  9 

It  was  expressly  provided  that  nothing  in  this  act  should  affect 
the  sanitary,  drainage  or  improvement  districts,  or  public  tuberculosis 
sanitarium  or  the  board  of  education.  Provision  was  made  for  a single 
board  of  park  commissioners,  and  the  powers  of  the  library  board  were 
preserved.  More  definite  provisions  as  to  the  House  of  Correction 
were  made  than  in  the  charter  act  of  1907. 

This  measure,  while  less  comprehensive  than  the  charter  act  of 
1907,  provided  for  the  consolidation  of  town  and  park  district  govern- 
ments with  that  of  the  city;  and  would  reduce  to  a considerable  ex- 
tent the  present  complexity  of  local  government  in  Chicago.  When 
submitted  to  popular  vote,  this  measure  failed  to  be  accepted,  mainly 
on  account  of  temporary  local  political  conditions.  The  act,  however, 
contains  provisions  for  resubmission,  and  may  be  adopted  at  a later 
time. 


Chicago  Bureau  of  Public  Efficiency  Reports.  In  recent  years 
the  Chicago  Bureau  of  Public  Efficiency  has  published  a series  of  re- 
ports dealing  with  the  complex  machinery  of  local  government  in  Chi- 
cago and  plans  for  unification  and  consolidation.  These  include  a ser- 
ies of  reports  on  county  offices,  and  reports  on  the  Park  Governments 
of  Chicago,  published  in  December,  1911 ; on  the  Nineteen  Local  Gov- 
ernments in  Chicago,  published  in  December,  1913,  and  reissued  in  a 
second  revised  edition  in  March,  1915 ; and  on  Unification  of  Local 
Governments  in  Chicago,  published  in  January,  1917. 

The  report  on  Park  Governments  presented  the  results  of  an  ex- 
tended inquiry  into  the  organization  and  methods  of  the  various  park 
boards,  made  at  the  request  and  with  the  co-operation  of  the  three 
large  park  boards.  This  recognized  the  excellent  results  in  many  re- 
spects of  the  Chicago  system  of  parks  and  boulevards;  but  also  dis- 
closed much  waste  and  inefficiency  mainly  as  a consequence  of  the  lack 
of  unity  in  park  management.  Recommendations  for  improvements  in 
expenditure  and  efficiency  under  the  existing  organization  were  made ; 
but  it  was  urged  that  there  should  be  a unified  management  of  park  fa- 
cilities, which  it  was  estimated  would  mean  a money  saving  of  $500,000 

9 Words  in  italics  indicate  changes  from  the  corresponding  provisions  in 
the  charter  act  of  1907. 


942 


a year,  and  would  enable  park  revenues  and  benefits  to  be  distributed 
more  equitably. 

The  report  on  the  Nineteen  Local  Governments  in  Chicago  an- 
alyzed briefly  the  multiplicity  of  taxing  bodies  within  the  city,  with  il- 
lustrative charts,  maps  and  tables  of  elective  officials  and  expendi- 
tures. 

The  report  on  Unification  of  Local  Governments  outlined  the  prob- 
lem of  unification,  discussed  the  defects  of  the  existing  arrangements 
and  the  benefits  of  unification,  and  recommended  a number  of  meas- 
ures, some  of  which  could  be  taken  without  changing  the  constitution, 
and  others  requiring  constitutional  amendment.  Appendices  included  a 
discussion  of  court  consolidation,  a skeleton  plan  of  unification,  tables 
of  elections  and  expenditures,  and  illustrative  charts. 


Defects  of  present  arrangements.  The  defects  of  the  existing 
“hodge-podge  of  irresponsible  governing  agencies”  were  discussed 
by  the  Chicago  Bureau  of  Public  Efficiency  under  the  following 
headings:  useless  overhead  expenses,  enormous  election  costs, 

cumbersome  assessing  machinery,  what  the  courts  cost,  expensive 
law  departments,  the  purchase  of  supplies  and  materials ; rent, 
light  and  telephone  service;  park  consolidation;  sanitary  district; 
and  other  economies  possible. 

Approximately  $500,000  a year  is  expended  on  the  salaries  of 
officers  which  would  be  unnecessary,  under  a properly  reorganized 
and  unified  government.  The  cost  of  elections  which  approximated 
$1,000,000  in  1912,  was  more  than  $2,000,000  in  1916.  The  average 
annual  cost  of  assessing  and  collecting  general  taxes  and  of  col- 
lecting special  assessments  over  a four-year  period  amounts  to 
approximately  $1,000,000.  The  cost  of  the  five  separate  county 
courts  and  the  municipal  court  of  Chicago  in  1915  was  $2,255,191, 
in  which  a large  saving  could  be  made  through  consolidation  and 
reorganization  of  the  administrative  machinery.  The  cost  of  the 
law  departments  of  the  county,  city,  sanitary  district  and  three 
large  park  boards  in  1915  was  $984,287.  The  maintenance  of  sev- 
eral accounting  agencies  results  in  much  needless  overhead  and 
other  expense.  Separate  purchasing  agencies  and  lack  of  stand- 
ardization in  supplies  cause  wasteful  conditions.  Space  in  public 
buildings  is  not  effectively  utilized ; and  the  cost  of  rent,  light  and 
telephone  service  would  be  reduced  by  a unified  system. 

As  previously  estimated  by  the  bureau,  park  consolidation 
alone  would  make  possible  a saving  of  $500,000  a year.  The  con- 
tinuance of  the  Sanitary  District  as  a separate  government  invites 
waste.  Other  minor  economies  would  be  possible  under  a unified 
and  reorganized  government. 

Estimates  of  present  waste  and  possible  savings  for  the  local 
communities  now  outside  of  Chicago  are  more  difficult  to  make, 
because  of  the  still  greater  number  of  different  authorities,  and  the 
relatively  small  amounts  handled  by  each.  But  the  existing  com- 


943 


plicated  governmental  arrangements  invite  waste  and  duplication 
of  effort;  and  the  number  of  elections  and  elective  officials  impose 
a serious  burden  on  the  voters. 


Benefits  of  Unification.  • The  money  savings  estimated  as  pos- 
sible through  the  consolidation  of  local  governments  have  been 
summarized  as  follows : 


1.  Overhead  expense,  by  reducing  the  number  of  supervisory 

officials  $550,000 

2.  Reducing  the  number  of  elections 836,000 

3.  Reorganizing  and  consolidating  the  agencies  for  assessing 

and  collecting  taxes  335,000 

4.  Consolidating  and  reorganizing  the  courts 236,000 

5.  Consolidating  and  reorganizing  law  departments 200,000 

6.  Consolidating  and  reorganizing  accounting  agencies No  estimate 

7.  Consolidating  and  reorganizing  purchasing  departments 500,000 

8.  Park  consolidation  ($500,000  less  amounts  included  in  esti- 

mates for  overhead  expense  and  purchases) 326,000 

9.  Reducing  expenses  for  rent,  light  and  telephone  service....  150,000 

10.  Abolishing  the  Sanitary  District  government No  estimate 

11.  Consolidating  and  reorganizing  other  activities No  estimate 

12.  Consolidating  and  reorganizing  maintenance  and  repair  forces  No  estimate 

13.  Abolishing  Coroner’s  juries  30,000 

14.  Better  control  of  finances  and  more  cooperation  and  foresight 

in  planning  permanent  improvements No  estimate 


Total  estimated  annual  economies ' $3,208,000 


In  addition  to  the  estimates  of  direct  money  savings,  equally 
if  not  more  important  results  could  be  secured  by  greater  efficiency, 
due  to  a better  organization.  A unified  government  could  also 
foresee  the  future  needs  of  the  community  and  could  formulate 
and  execute  plans  to  meet  them  much  more  efficiently  and  econo- 
mically than  is  possible  under  existing  conditions. 

For  the  local  communities  outside  of  the  present  limits  of 
Chicago,  a unified  government  should  also  make  possible  consid- 
erable money  savings ; and  would  clearly  permit  a simpler  and 
more  responsible  system  of  government,  and  a reduction  in  the 
number  of  elections  and  still  more  in  the  number  of  elective  officers. 


Proposed  Plans  and  Problems.  Several  alternative  plans  have 
been  suggested,  from  time  to  time,  as  a basis  for  the  unification  of 
local  governments  in  Chicago. 

Tn  the  first  place  may  be  noted  plans  based  on  the  present  con- 
stitution, including  the  amendment  adopted  as  section  34  of  Arti- 
cle IV.  The  proposed  charter  of  1907  was  based  on  this  amend- 
ment, and  consolidated  practically  all  the  agencies  which  could 
be  included  under  its  provisions.  The  consolidation  act  of  1915, 
which  is  still  open  to  adoption,  is  less  comprehensive  and  omits 
the  board  of  education  and  the  public  tuberculosis  sanitarium  from 
the  consolidation. 

Both  of  these  measures  omit  from  the  consolidation  the  county 
government,  (including  the  courts)  and  the  sanitary  district;  and 


§44 


under  the  present  constitutional  provisions  these  can  not  be  in- 
cluded. These  are  serious  limitations  on  the  proposed  consolida- 
tion. The  county  government  and  the  several  courts  are  among 
the  most  complex  features  of  the  present  situation  and  any  unifi- 
cation which  does  not  deal  with  them  will  be  far  from  complete. 

City-County  of  Chicago.  Another  plan,  proposed  as  early  as 
1870  and  at  times  since,  is  to  create  the  existing  city  of  Chicago  as 
a separate  county;  and  to  consolidate  the  county,  city  and  other 
local  governments.  The  remainder  of  Cook  County  may  then  be 
organized  as  one  or  more  counties,  or  may  be  attached  to  other 
counties,  as  may  be  preferred  by  the  districts  affected. 

This  plan  would  make  possible  a practically  complete  con- 
solidation of  local  governments  within  the  present  limits  of  the 
city  of  Chicago;  and  would  leave  the  surrounding  territory  free 
to  make  other  arrangements  for  county  government.  It  gives  rise, 
however,  to  some  problems  which  need  to  be  recognized  and  con- 
sidered. 

Chicago  does  not  include  the  whole  of  the  Sanitary  District ; 
and  if  this  is  to  be  included  in  the  consolidation,  special  arrange- 
ments will  have  to  be  made.  It  has  been  suggested  that,  as  the 
construction  works  are  now  substantially  completed,  the  city 
should  take  over  the  maintenance  of  existing  works,  and  other 
functions  of  the  district,  and  could  also  be  required  to  furnish 
additional  drainage  facilities  for  territory  outside  of  the  city,  under 
suitable  financial  arrangements,  as  the  city  now  furnishes  water 
to  some  territory  outside  of  the  city. 

A readjustment  will  also  be  necessary  in  respect  to  the  forest  pre- 
serve district.  The  forest  preserves  are  mostly  outside  of  the  present 
limits  of  Chicago ; but  might  be  maintained  by  the  city-county. 

Some  adjustment  will  also  be  necessary  in  connection  with 
the  construction  and  maintenance  of  state  highways  in  the  part 
of  Cook  County  not  included  in  the  consolidated  city  and  county. 

To  create  a new  county  along  the  present  irregular  boundary 
of  the  city  will  cause  some  administrative  difficulties.  The  present 
limits  cut  across  township  lines ; and  the  transfer  of  land  records 
for  the  territory  outside  of  the  city,  and  of  court  records  affecting 
property  outside  of  the  city,  will  involve  considerable  work.  Ar- 
rangements to  meet  this  difficulty  may  be  proposed.  Provisions 
should  also  be  made  for  future  annexations  to  the  city  and  county 
of  Chicago,  with  the  consent  of  the  districts  to  be  annexed. 

Sanitary  District  Area.  Some  of  these  difficulties  will  be 
obviated  or  reduced  if  the  Sanitary  District  be  taken  as  the  area  for 
a combined  city  and  county.  This  proposal  would  make  possible 
the  inclusion  of  the  Sanitary  District  government  in  the  consolidat- 
ed system  without  difficulty ; and  it  would  reduce  the  administra- 
tive problems  connected  with  changes  in  county  boundaries.  This 
territory  would  also  include  all  of  that  likely  to  be  annexed  to 
Chicago  for  a considerable  period  ; so  that  further  changes  in  city 
and  county  boundaries  would  not  be  expected  for  some-  time. 


945 


It  may  be  further  suggested  that  these  factors  would  be  even 
more  true  if  an  area  were  taken  including  all  of  the  townships 
any  part  of  which  is  now  in  the  sanitary  district,  and  also  Bloom 
township,  which  is  largely  urban  and  suburban  in  character. 

Difficulties  arising  out  of  a rearrangement  of  county  bound- 
aries would  be  entirely  eliminated,  if  the  whole_of  Cook  County 
were  taken  as  the  limits  of  the  proposed  city-county.  But  the 
half  dozen  townships  in  the  northwest  of  Cook  County  and  sev- 
eral townships  in  the  southern  part  of  the  country  are  so  largely 
agricultural  and  beyond  the  region  of  suburban  villages,  that  it 
may  not  seem  advisable  to  include  them  in  what  will  be  a dis- 
tinctly urban  community  with  a consolidated  government. 

Problems.  Any  plan  to  include  territory  now  outside  of  Chi- 
cago in  the  proposed  city-county  raises  other  problems  which  must 
also  be  recognized  and  considered.  These  cities  and  villages  out- 
side of  Chicago  have  not  as  yet  indicated  any  desire  to  be  annexed 
to  Chicago.  It  may  be  that  they  will  be  more  favorably  disposed 
to  unite  in  forming  a comprehensive  city-county.  But  their  atti- 
tude will  be  a factor  to  be  kept  in  mind. 

It  may  be  said  that  a large  city  should  have  some  control  over 
the  planning  and  development  of  suburban  areas  which  are  likely 
to  be  annexed  in  the  course  of  time.  It  is  also  urged  that  important 
public  works  and  public  utilities  can  be  more  satisfactorily  manag- 
ed for  the  whole  metropolitan  area  than  for  the  present  separate 
municipal  areas.  This  has  been  recognized  by  including  most  of 
these  communities  in  the  Sanitary  District.  In  the  same  way  a 
single  water  supply  should  give  better  and  cheaper  service  than  a 
number  of  separate  plants.  A well-organized  school  system  should 
be  more  satisfactory  than  a series  of  local  schools.  Merger  with 
Chicago  would  give  the  suburban  districts  access  to  better  library 
facilities.  Problems  of  transportation  and  lighting  affect  both  the 
present  city  and  suburbs ; and  existing  conditions  are  not  only 
unsatisfactory,  but  place  the  suburban  residents  at  a disadvantage 
both  as  to  prices  and  service.  A city-county  including  the  sub- 
urban districts  would  be  a more  satisfactory  unit  for  local  regu- 
lation of  such  public  utilities,  or  for  municipal  ownership  and  oper- 
ation, than  the  present  city  of  Chicago. 

It  is  also  pointed  out  that  tax  rates  are  lower  in  Chicago  than 
in  neighboring  suburbs.  The  tax  rates  in  Chicago  for  the  year 
1918  were  as  follows: 

South  Park  District  (towns  of  South  Chicago,  Hyde  Park 


and  Lake) $5.85 

West  Park  District  (West  Chicago) 6.24 

Lincoln  Park  District  (towns  of  North  Chicago  and  Lake 

View)  6.21 

Town  of  Jefferson  5.42  to  5.99 


The  prevailing  tax  rates  in  some  of  the  more  important  sub- 
urban cities  and  villages  in  1918  were  as  follows : 


946 


Berwyn  $9,29 

Blue  Island  10.59 

Chicago  Heights  10.21 

Cicero  . 12.35 

Evanston  9.22 

Harvey  9.71 

Oak  Park  9.87 

River  Forest  9.21 

Riverside  9.18 

Wilmette  10.38 

Winnetka  9.93 


In  explanation  of  these  higher  tax  rates  in  suburban  communi- 
ties, it  is  sometimes  claimed  that  assessed  valuations  in  the  suburbs  are 
relatively  lower  than  in  Chicago,  and  that  in  proportion  to  true  value 
the  taxes  are  not  so  .much  higher  as  the  comparative  rates  indicate. 
How  far  this  may  be  the  case  it  is  difficult  to  determine.  But  if  this 
is  true,  the  effect  is  to  relieve  the  suburban  residents  from  part  of 
their  fair  share  of  state,  county  and  sanitary  district  taxes. 

On  the  other  hand,  it  is  urged  that  at  least  some  of  these  suburban 
districts  have  distinct  characteristics,  which  it  is  feared  might  be  de- 
stroyed if  absorbed  in  a single  centralized  urban  government.  Sub- 
urban residents  have  in  many  cases  moved  outside  of  the  city,  in  order 
to  enjoy  the  advantages  of  these  communities,  even  at  higher  tax  rates, 
and  in  order  to  have  a more  direct  voice  in  local  affairs.  It  is  main- 
tained that  in  some  of  these  suburbs,  the  local  schools  are  better  than 
those  in  Chicago,  and  that  local  improvements  are  better  looked  after 
by  local  officials  influenced  by  neighborhood  public  opinion.  -Census 
statistics  on  municipal  finances  indicate  that  in  some  suburban  villages 
the  local  taxes  and  expenditures  are  lower  per  capita  than  in  Chicago ; 
in  others,  which  are  well-to-do  residence  districts,  the  total  per  capita 
expenses  are  higher  than  in  Chicago,  mainly  on  account  of  larger  pay- 
ments for  schools  and  highways,  while  the  cost  of  police  and  fire 
protection  is  less  than  in  Chicago. 

An  examination  of  the  taxes  levied  in  recent  years  shows  that 
school  taxes  are  much  higher  and  form  a much  larger  proportion  of 
the  total  taxes  in  most  of  the  suburban  communities  than  in  Chicago. 
In  many  of  the  suburbs  the  school  taxes  are  about  twice,  and  in  some 
cases  about  three  times,  the  city  or  village  taxes ; while  in  Chicago 
school  taxes  are  less  than  the  city  taxes.  In  so  far  as  this  is  due  to  the 
greater  expense  of  better  schools,  the  present  arrangements  permit 
such  communities  to  pay  higher  taxes  for  this  purpose,  if  they  wish  to 
do  so. 

It  has  been  suggested  that  some  of  these  problems  might  be  met 
by  giving  legal  recognition  to  local  districts  in  connection  with  local 
affairs  suck  as  street  improvements,  street  cleaning,  sprinkling,  weed 
cutting  and  snow  removal,  and  in  connection  with  certain  matters  of 
local  administration.  A satisfactory  plan  of  subordinate  local  districts 
in  connection  with  the  proposed  unified  government  might  lead  the 
suburban  communities  to  join  voluntarily  in  a comprehensive  plan. 

If  any  considerable  area  outside  of  the  present  limits  of  Chicago 
is  included,  another  problem  will  be  as  to  the  taxation  of  farm  lands. 


947 


It  may  be  urged  that  such  lands  should  not  be  taxed  for  distinctively 
urban  services  and  improvements,  at  least  until  they  are  brought  with- 
in the  area  of  suburban  development.  But  this  will  require  a de- 
parture from  the  rule  of  uniformity  in  taxation  The  present  sys- 
tem operates  to  discourage  annexation  until  the  suburban  area  is  act- 
ually built  up.  An  adjustment  of  tax  methods  would  encourage 
annexation  before  development,  and  bring  this  under  the  control  of 
the  municipal  government.  Variations  in  taxes  for  different  local 
districts  within  the  city  may  also  be  advisable  if  such  local  districts 
are  to  be  allowed  to  establish  different  standards  of  service  in  some 
matters  from  those  maintained  for  the  city  as  a whole. 

Any  change  in  county  lines  will  also  involve  an  adjustment  of 
debts  and  other  financial  arrangements  between  the  city-county  and 
the  remainder  of  Cook  County.  This  will  involve  an  analysis  of  the 
purposes  for  which  debt  has  been  incurred  and  the  financial  rela- 
tions between  the  different  parts  of  the  present  county.  Debt  in- 
curred for  public  buildings  and  institutions  taken  over  by  the  city- 
county  should  be  assumed  by  the  city-county ; and  credits  may  be  al- 
lowed to  the  detached  portions  for  payments  made  in  taxes  for  such 
buildings  and  institutions.  Debts  for  highways  and  other  undertak- 
ings partly  in  the  detached  portions  and  transferred  with  them  may 
be  apportioned  on  an  equitable  basis,  perhaps  that  of  assessed  valua- 
tion. 

A detailed  plan  of  financial  readjustments  can  not  be  worked 
out  in  the  state  constitution ; but  authority  should  be  given  for  dealing 
with  this  problem,  subject  to  the  consent  of  the  communities  concerned. 

It  has  been  suggested  that  the  towns  now  in  Cook  County  outside 
of  Chicago  would  lose  some  advantages  by  being  placed  in  another 
county ; since  under  present  conditions  they  have  the  benefit  of  county 
institutions  and  public  improvements  which  are  supported  mainly  by 
taxes  paid  by  Chicago. 

A thorough  analysis  of  the  relative  benefits  and  expenses  of  the 
outside  towns  in  connection  with  the  Cook  County  institutions  would 
be  difficult  to  make.  But  an  examination  of  the  records  of  the  inmates 
in  the  County  Hospital  and  the  County  Institutions  at  Oak  Forest  for 
a single  day  indicates  that  the  country  towns  receive  less  benefit  from 
these  institutions  than  their  share.of  the  county  taxes,  as  shown  in  the 
table  below : 


Inmates  of  Cook  County  Institutions. 


From 

County 
Hospital 
(Oct.  1, 
1919.) 

Oak 
Forest 
(Sept.  26, 
1919.) 

Total 

Percent- 
age of 
Inmates. 

Percent- 
age of 
County 
Taxes. 

Chicago 

1,281 

2,750 

4,031 

94.60 

92.5 

Towns  in  Sanitary  District 
outside  Chicago  

51 

104 

155 

i 

3.64 

5.4 

Towns  outside  of  Sanitary 
District  

8 

31 

39 

.91 

2.1 

Outside  of  Cook  Co 

6 

30 

36 

.85 

Total  

1,346 

2,915 

4,261 

100. 

100. 

948 


The  towns  outside  of  Chicago  pay  about  7^  per  cent  of  the 
county  taxes,  and  had  less  than  5 per  cent  of  the  inmates.  The  towns 
outside  of  the  Sanitary  District  pay  a little  more  than  2 per  cent  of  the 
county  taxes  and  had  less  than  1 per  cent  of  the  inmates.  Most  of 
the  inmates  from  country  towns  came  from  a few  towns,  such  as 
Cicero,  Proviso,  Thornton  and  Bloom ; while  Evanston  which  pays 
about  1.2  per  cent  of  the  county  taxes  had  only  16  inmates,  about  0.4 
per  cent.  New  Trier,  paying  about  half  as  much  in  county  taxes  as 
Evanston,  had  the  same  proportion  of  inmates  (8).  Oak  Park,  which 
pays  more  in  county  taxes  than  New  Trier  had  even  fewer  inmates 
in* these  county  institutions. 

In  the  care  of  county  roads,  the  expenditure  is  in  the  towns  out- 
side of  Chicago,  and  more  than  92  per  cent  of  the  taxes  is  paid  by 
Chicago.  But  the  program  for  the  construction  of  county  roads  is 
likely  to  be  completed  before  the  plans  of  consolidation  can  be  car- 
ried out ; and  it  may  be  presumed  that  Chicago  will  take  over  its  share 
of  the  bond  issues  for  their  construction. 

Other  plans.  Another  possible  alternative  solution  which  may 
be  mentioned  would  be  to  combine  the  county,  the  courts  and  the 
sanitary  district,  under  a unified  and  simplified  organization;  and 
also  to  consolidate  in  a separate  government  the  various  governments 
now  within  the  city  of  Chicago.  This  would  permit  a good  deal  of 
simplification  in  each  of  the  two  governments ; but  would  not  secure 
all  of  the  advantages  of  complete  consolidation  even  within  the  city; 
while  it  would  leave  untouched  the  complex  problem  of  overlapping 
districts  in  the  suburban  communities. 

In  the  general  assembly  of  1919  a bill  was  introduced  for  a Met- 
ropolitan Court,  consolidating  the  various  courts  in  Cook  County, 
including  the  Municipal  Court  of  Chicago,  into  one  comprehensive 
court.  While  prepared  with  a view  of  meeting  all  existing  constitu- 
tional provisions,  it  is  doubtful  if  this  was  accomplished;  and  it  may 
be  questioned  if  any  plan  of  court  consolidation  will  be  possible  with- 
out changes  in  the  state  constitution. 

County  Readjustments  Outside  of  Chicago.  Any  plan  for  city- 
county  consolidation  which  does  not  embrace  the  whole  of  Cook 
County  will  involve  a rearrangement  and  readjustment  of  county 
government  for  the  parts  of  Cook  County  not  included  in  the  consol- 
idated city-county.  Several  suggestions  have  been  made  for  this ; and 
these  may  be  worked  out  and  combined  in  different  ways,  so  as  to  offer 
a considerable  number  of  alternatives.  It  will  not  be  advisable  for  the 
constitutional  convention  to  undertake  a definite  solution  of  these 
problerhs ; but  attention  may  be  given  to  some  of  the  various  plans 
suggested,  so  that  constitutional  provisions  may  be  framed  which  will 
permit  the  problem  to  be  worked  out  by  the  general  assembly  with  the 
consent  of  the  local  communities. 

One  plan  is  that  indicated  in  the  resolution  first  introduced  in  the 
general  assembly  of  1903,  relating  to  the  constitutional  amendment 
proposed  that  year.  This  resolution  contained  a provision  authorizing 
the  creation  of  not  more  than  two  counties  out  of  the  part  of  Cook 
County  outside  of  Chicago.  A glance  at  the  map  of  Cook  County, 


949 


however,  suggests  the  advisability  of  considering  the  possibility  of 
three  counties,  each  of  which  would  be  geographically  more  compact 
than  the  whole  area  of  Cook  County  outside  of  Chicago,  or  any  ar- 
rangement for  two  counties. 

Another  general  plan  which  has  been  suggested  is  to  authorize 
the  annexation  of  portions  of  Cook  County  to  the  adjoining  counties 
of  Lake,  Kane,  DuPage  and  Will.  Combinations  of  these  general 
plans  may  also  be  considered,  under  which  some  portions  of  Cook 
County  now  outside  of. Chicago  might  join  a new  city-county;  some 
parts  might  be  annexed  to  adjoining  counties;  while  other  portions 
might  be  organized  as  one  or  more  counties. 

Without  attempting  to  present  all  of  the  possible  arrangements, 
suggested  outlines  for  the  application  of  these  plans  may  be  indicated 
and  some  data  relating  to  these  suggestions  may  be  set  forth. 

The  creation  of  a single  new  county  out  of  the  whole  territory 
of  Cook  County  now  outside  of  Chicago  would  provide  a county  of 
nearly  800  square  miles,  with  a population  of  over  300,000.  This  would 
be  larger  in  area  than  most  Illinois  counties,  and  with  a much 
larger  population  than  any  other  county  except  the  proposed  city 
and  county  of  Chicago.  But  the  area  of  the  county  would  be  ex- 
tremely irregular ; and  its  shape  and  the  means  of  transportation  would 
make  any  location  of  the  county  seat  difficult  of  access  to  considerable 
parts  of  the  county. 

A division  into  two  counties  would  reduce  these  difficulties  to 
some  extent;  but  would  leave  them  in  large  measure  for  at  least  one 
of  the  two  counties. 

The  formation  of  three  counties  would  make  possible  counties 
compact  and  regular  in  form,  and  each  with  a population  larger  than 
the  majority  of  Illinois  counties;  but  their  area  would  be  less  than 
the  present  minimum  limit  of  400  square  miles  for  new  counties.  A 
possible  arrangement  of  this  kind  is  outlined  below. 


950 


Area 
Sg.  Mi. 

Population. 

Assessed 

Valuation. 

1910. 

1919. 

1918. 

Northern  County: 

36 

1,953 

$ 1,089,814 

32 

1,649 

944,623 

Palatine  

36 

2,147 

1,042,408 

31 

954 

561,646 

36 

3,845 

1,058,521 

Elk  Grove  

27 

1,302 

624,490 

Northfield  

35 

2,675 

3,105 

890,377 

Maine  

29 

6,650 

8,938 

1,794,722 

New  Trier  

16 

12,532 

6,933,148 

Niles  

23 

4,203 

* '5,647 

1,441,079 

Evanston  

6 

24,978 

33,889 

14,011,221 

307 

62,888 

$30,392,049 

Western  County: 

Leyden  

31 

2,813 

5,780 

$2,238,343 

Norwood  Park  

7 

5,251 

2,347 

416,493 

Proviso  

31 

24,465  1 

6,261,021 

Riverside  

2 

1,980  }■ 

42,506 

1,696,617 

River  Forest  

2 

2,456  J 

1,137,754 

Oak  Park  

4 

19,444 

36,465 

9,401,427 

Cicero  

6 

14,557  l 

57  488 

6,351,620 

Berwyn  

3 

5,841  i 

2,352,628 

Stickney  

13 

962 

2,159,582 

TiVons  T 

36 

11,289 

5,348,341 

135 

89,058 

$37,363,826 

Southern  County: 

Lemont  

20 

4,296 

3,841 

$ 761,955 

Palos  

36 

1,405 

1,164 

563,532 

Worth  , 

35 

7,154 

2,909,688 

Calumet  

4 

5.187 

1,273,984 

Orland  

36 

1,230 

1,119 

561,990 

Bremen  

36 

1,898 

2,008 

1,044,792 

Thornton  „ 

47 

22,067 

31,881 

7,384,751 

Rich  

36 

1,301 

1,055,151 

Bloom  

47 

18,339 

22,360 

3,999,645 

297 

62,877 



$19,555,488 

951 


If  all  of  the  territory  of  Cook  County  outside  of  Chicago  preferred 
to  be  annexed  to  other  counties,  the  northern  group  of  townships  might 
be  annexed  to  Lake  County,  the  western  group  to  Du  Page  County, 
and  the  southern  group  to  Will  County.  But  a somewhat  different  ar- 
rangement may  be  suggested  as  perhaps  more  probable,  as  follows : 


Area 
Sq.  Mi. 

Population 

1910. 

Assessed 

Valuation. 

1918. 

To  Lake  County: 

Palatine  

36 

2,147 

$ 1,042,408 

Wheeling  

36 

3,845 

1,058,521 

Northfield  . . . 

35 

2,675 

890,377 

New  Trier  

16 

12,532 

6,933,148 

Niles  

23 

4,203 

1,441,079 

Evanston  

* 6 

24,978 

14,011,221 

152 

50,380 

$25,376,754 

Lake  County  

394 

55,058 

25,510,446 

546 

105.438 

$50,887,190 

To  Kane  County: 

Barrington  

36 

1,953 

$1,089,814 

Hanover  

32 

1,649 

944,623 

68 

3,602 

$ 2,034,437 

Kane  County  

540 

91,862 

37,562,580 

608 

95,464 

$39,597,017 

To  Du  Page  County: 

Schaumberg  

31 

954 

$ 561,646 

Elk  Grove  

27 

1,302 

624,490 

Maine  

29 

6,650 

1,794,722 

Leyden  

31 

2,813 

2,238,343 

Norwood  Park  

7 

5,251 

416,493 

Proviso  

31 

24,465 

6,261,021 

Riverside  

2 

1,980 

1,696.617 

River  Forest  

2 

2,456 

1,137,754 

Oak  Park  

4 

19,444 

9,401,427 

Cicero  

6 

14,557 

6,351,620 

Berwyn  

3 

5,841 

2,352,628 

Stickney  

13 

962 

2,159,582 

Lyons  

36 

11,289 

5,348,341 

222 

97,964 

$40,344,684 

Du  Page  County... 

340 

33,432 

17,276,478 

562 

131,396 

$57,621,162 

To  Will  County: 

Lemont  

20 

4,296 

$ 761,955 

Palos  

36 

1,405 

563,532 

Worth  

35 

7,154 

2,909,688 

Calumet  

4 

5,187 

1,273,984 

Orland  

36 

1,230 

561,990 

Bremen  

36 

1,898 

1,044,792 

Thornton  

47 

22,067 

7,384,751 

Rich  

36 

1,301 

1,055,151 

Bloom  

47 

18,339 

3,999,645 

297 

62,877 

$19,555,488 

Will  County  

850 

84,371 

35,123,490 

1,147 

147,248 

$54,678,978 

The  annexation  to  Kane  County  would  be  more  appropriate  in 
view  of  the  fact  that  part  of  the  city  of  Elgin  is  now  in  the  township 
of  Hanover. 


952 


The  above  rearrangement  would  about  double  the  population  of 
Lake  and  Will  counties,  and  increase  the  population  of  Du  Page 
County  about  three-fold.  It  would  more  than  treble  the  assessed  valua- 
tion of  Du  Page  County,  would  double  that  of  Lake  County,  and  in- 
crease that  of  Will  County  more  than  50  per  cent.  It  would  make  all 
of  these  counties  among  the  largest  in  the  state  outside  of  Chicago. 

The  table  below  gives  certain  statistics  as  to  Cook  County  and  ad- 
joining counties  which  may  serve  as  a basis  for  estimates  as  to  the  prob- 
able effects  of  annexing  parts  of  Cook  County  to  these  counties. 


County. 

Area. 

(Sq.  Miles.) 

Estimated 

Population 

1919. 

Assessed 

Valuation 

1918. 

County 
Tax  'Rates 
(cents) 
1918. 

Cook  County 

993 

2,800,000 

$1,170,075,143 

60 

Du  Page  County 

340 

40,000 

17,263-,612 

61 

Dak e County 

394 

70,000 

25,504,516 

72 

Will  County 

850 

100,000 

35,123,745 

75 

The  large  increase  of  population  to  these  adjoining  counties  by 
the  annexation  of  parts  of  Cook  County,  with  a smaller  proportionate 
increase  of  area,  should  involve  less  than  a proportionate  increase  in 
county  expenses,  and  would  probably  make  possible  a considerable  re- 
duction in  their  county  tax  rates,  if  these  counties  were  thus  enlarged. 

It  will  also  be  noted  that  the  assessed  valuation  of  each  of  the  three 
parts  of  Cook  County  suggested  as  possible  new  counties,  as  well  as 
their  population,  is  comparable  to  that  of  the  adjoining  counties;  and 
they  could  therefore  be  expected  to  maintain  the  expense  of  a separate 
county  government  on  the  same  basis  as  the  neighboring  counties,  if 
this  solution  of  the  problem  is  preferred. 


Constitutional  Obstacles.  As  already  noted,  the  constitutional 
amendment  of  1904  permits  the  consolidation  of  the  various  local  gov- 
ernments within  the  present  or  future  limits  of  the  city  of  Chicago; 
but  it  does  not  permit  the  consolidation  with  the  city  of  the  courts  or 
the  county  or  sanitary  district  government.  The  provisions  of  the 
present  constitution  which  prevent  any  comprehensive  unification  of 
local  government  may  be  noted  as  follows : 

In  Article  IV,  sections  22  and  34  relating  to  special  legislation. 

In  Article  VI,  on  the  judicial  department,  sections  18  to  22  relat- 
ing to  county  courts,  probate  courts,  justices  of  the  peace  and  con- 
stables and  state’s  attorneys ; and  sections  23  to  28  relating  to  courts 
of  Cook  County. 

In  Article  VIII,  on  education,  section  5 providing  for  the  election 
of  the  county  superintendent  of  schools. 

In  Article  IX,  on  revenue,  the  provisions  of  sections  1,  9 and  10 
requiring  uniformity  of  taxation ; and  section  12  on  municipal  debts. 

In  Article  X,  on  counties,  sections  1 to  3 relating  to  new  counties 
and  changes  in  county  boundaries ; section  7 on  the  Cook  County  board 


953 


of  commissioners,  and  section  8 to  12  providing  for  elective  county  of- 
ficers and  relating  to  their  fees  .and  compensation. 

Some  of  these  constitutional  obstacles  to  consolidation  may  be  re- 
moved by  changes  made  to  meet  problems  of  general  application 
throughout  the  state.  If  the  detailed  provisions  relating  to  courts  in- 
ferior to  the  supreme  court  are  omitted  or  modified  so  as  to  leave  their 
organization  and  jurisdiction  to  the  general  assembly;  and  if  the  pro- 
visions relating  to  uniform  taxation  and  requiring  the  election  of  a 
numerous  list  of  county  officers  are  substantially  changed,  the  new  pro- 
visions may  be  drafted  so  as  to  permit  a comprehensive  and  unified 
system  of  local  government  for  Chicago  and  Cook  County. 

But  even  with  considerable  changes  in  some  of  the  restrictive  sec- 
tions, some  provisions  which  may  seem  to  the  Convention  desirable  for 
the  rest  of  the  state  will  operate  to  prevent  a satisfactory  solution  of 
local  problems  in  Cook  County.  This  may  make  it  necessary  to  con- 
sider some  provisions  specially  applicable  to  Cook  County,  as  was  at- 
tempted in  the  amendment  of  1904.  If  this  method  is  followed,  care 
should  be  taken  to  frame  as  simple  provisions  as  possible,  free  from 
specific  details,  for  such  details  will  need  to  be  modified  from  time  to 
time  by  legislation  or  local  action. 

Some  provisions  of  the  present  constitution  which  stand  in  the  way 
of  unification  in  Cook  County  may  cause  little  or  no  trouble  in  other 
parts  of  the  state,  and  changes  will  be  urged  mainly  on  account  of  con- 
ditions in  Chicago.  For  illustration,  the  provision  that  no  line  of  a new 
county  shall  pass  within  ten  miles  of  any  county  seat  of  a county  or 
counties  to  be  divided,  absolutely  prevents  the  formation  of  a consoli- 
dated city-county  in  which  the  county  line  will  necessarily  be  identical 
with  the  boundary  of  the  county  seat.  If  it  is  considered  desirable  to 
retain  the  ten-mile  condition  for  other  parts  of  the  state  an  exception 
will  be  needed  to  permit  the  formation  of  any  proposed  city-county. 

The  minimum  limit  of  400  square  miles  for  new  counties  may  be 
met  if  an  area  covering  little  more  than  the  present  sanitary  district  of 
Chicago  is  taken.  But  to  permit  a consolidated  city-county  correspond- 
ing to  the  present  limits  of  the  city  of  Chicago  this  minimum  would 
have  to  be  waived.  If  large  cities  other  than  Chicago  are  to  be  author- 
ized to  be  organized  as  separate  counties,  the  minimum  area  will  have 
to  be  altered  or  waived  in  such  cases. 

It  may  be  assumed  that  the  general  principle  of  local  consent  for 
alterations  of  boundaries,  and  for  additions  to  or  divisions  of  counties 
will  be  continued.  But  some  consideration  may  be  given  to  the  question 
whether  all  of  the  present  constitutional  requiremens  are  necessary. 
For  example,  may  not  a majority  of  those  voting  in  territory  proposed 
to  be  transferred  be  accepted  as  sufficient,  in  place  of  requiring  a pe- 
tition by  a majority  of  the  voters? 

Attention  is  directed  to  the  table  appearing  in  the  appendix  which 
shows  the  bonded  indebtedness  of  the  local  governments  having  jur- 
isdiction within  the  limits  of  the  city  of  Chicago.  The  total  bonds 
authorized  (including  those  outstanding  and  those  unsold)  amount  to 
more  than  $128,000,000.  Several  of  the  governments,  such  as  the 
County,  and  the  Sanitary  District,  extend  beyond  the  limits  of  Chi- 


954 


cago,  but  their  debts  are  involved  and  are  to  be  adjusted  in  any  scheme 
of  local  government  consolidation.  In  connection  with  the  issuing  of 
bonds,  it  should  be  pointed  out  that  certain  governments,  such  as  the 
Sanitary  District  of  Chicago  and  the  Forest  Preserve  District,  are  not 
required  by  law  to  obtain  the  approval  of  the  voters;  and  that  other 
governments  are  prohibited  from  issuing  bonds  without  a sanctioning 
referendum.  For  a number  of  reasons  it  is  impossible  to  name  the 
exact  relation  between  the  bonded  .debt  of  the  community  and  the  tax- 
able property.  The  1919  valuation  figures  are  not  yet  available.  A 
large  proportion  of  the  city’s  unsold  bonds  have  been  authorized  on  the 
new  basis  of  valuation  as  provided  by  the  1919  general  assembly,  hence 
the  1918  valuation  figures  cannot  be  used.  Furthermore,  a certain 
amount  of  bonds  outstanding  are  exempt  from  the  constitutional  limit 
of  five  per  cent  of  the  assessed  valuation.  Also,  the  total  indebted- 
ness is  based  on  the  valuations  of  geographical  areas  that  are  not  all 
co-extensive  with  each  other.  After  making  allowances  and  adjust- 
ments, however,  it  is  safe  to  say  that  the  combined  debt  of  the  com- 
munity is  considerably  in  excess  of  the  constitutional  limit  of  five  per 
cent  of  the  assessed  valuation. 


955 


IV.  CITY-COUNTY  CONSOLIDATION  IN  OTHER 
STATES  AND  COUNTRIES. 


In  a number  of  other  states  provision  has  been  made  for  the  con- 
solidation to  some  extent  of  city  and  county  government  for  large 
cities ; and  in  several  European  countries  there  is  a similar  consolida- 
tion of  local  government  for  larger  cities. 

New  York  city  includes  five  counties ; Philadelphia  city  and 
county  are  identical  in  area ; Baltimore,  St.  Louis  and  San  Francisco 
combine  city  and  county  functions ; and  Boston  includes  most  of 
Suffolk  County.  In  all  of  these  cases  the  city  government  includes 
some  county  functions  and  absorbs  some  county  officers.  In  Denver, 
city  and  county  governments  have  been  more  thoroughly  consolidated. 
In  the  District  of  Columbia,  a single  government  exercises  some  of 
the  functions  elsewhere  divided  between  city,  county  and  state. 

In  Virginia,  all  cities  are  excluded  from  the  counties ; and  the 
city  government  provides  for  county  functions.  Several  state  con- 
stitutions have  provisions  authorizing  larger  cities  to  be  organized  as 
counties.  In  Minnesota,  cities  of  over  20,000  may  be  so  organized ; 
and  in  Michigan  and  Missouri,  cities  of  over  100,000.  The  Cali- 
fornia constitution  contains  a general  provision  authorizing  city  and 
county  consolidation,  and  special  provisions  for  S5an  Francisco  and 
some  other  counties. 

Plans  for  city-county  consolidation  have  been  actively  urged  in 
recent  years  in  a number  of  larger  American  cities. 

In  England  municipalities  of  over  50,000  population  are  regu- 
larly organized  as  county  boroughs.  In  Prussia  most  cities  of  over 
25,000  are  classed  as  Kreis-stadte,  combining  the  functions  of  cities 
and  the  district  known  as  the  circle,  which  corresponds  somewhat  to 
the  county. 

An  examination  of  some  of  these  cases  of  consolidated  local 
government  should  be  of  value  in  considering  the  problem  in  Chicago 
and  Cook  County. 


New  York  City.  There  are  now  five  counties  within  the 
limits  of  the  city  of  New  York;  and  the  county  governments  have 
been  to  some  extent  consolidated  in  and  merged  with  the  city  govern- 
ment. But  the  counties  are  still  retained  as  separate  units  for  the 
administration  of  justice  and  the  election  of  certain  county  officers 
prescribed  by  the  state  constitution. 

When  the  first  counties  were  established  in  New  York,  in  1683, 
New  York  county  comprised  Manhattan  Island  and  some  small  neigh- 
boring islands;  and  the  first  charter  of  New  York  City,  in  1686,  gave 


956 


the  city  the  same  boundaries  as  the  county.  Thereafter  the  two  were 
generally  referred  to  as  “The  City  and  County  of  New  York”.  With 
some  minor  changes,  the  boundaries  remained  unaltered  until  1873, 
when  three  towns  in  Westchester  were  made  part  of  the  city  and 
county  of  New  York;  and  in  1895  parts  of  other  towns  and  villages 
in  Westchester  county  were  added  to  the  city  and  county  of  New 
York. 

From  the  beginning,  the  county  and  city  government  were  closely 
connected.  The  sheriff  of  New  York  County  was  also  sheriff  for  the 
city.  In  1813  it  was  expressly  provided  that  the  chamberlain  of  the 
city  and  county  of  New  York  should  be  considered  the  county  treas- 
urer. When  county  boards  of  supervisors  were  established  in  New 
York  none  was  provided  for  New  York  county;  and  the  council,  or 
mayor  and  aldermen,  of  the  city  were  declared  to  be  the  board  for 
that  county.  From  1857  to  1874  a separate  board  of  supervisors  was 
provided ; but  in  the  latter  year  its  powers  were  again  transferred  to 
the  board  of  aldermen  of  New  York  City.  From  time  to  time,  how- 
ever, various  county  officers  were  provided,  who  acted  independently 
of  the  city  government. 

Three  of  the  other  counties  now  included  in  New  York  City 
(Kings,  Queens  and  Richmond)  were  also  among  the  original  counties 
created  in  1683.  Their  government  was  similar  to  that  of  other 
counties  and  distinct  from  that  of  the  villages  and  cities  which  de- 
veloped within  their  limits.  In  1854,  however,  when  the  city  of 
Brooklyn  included  a large  part  of  Kings  county,  the  city  and  county 
governments  were  more  closely  inter-related ; and  in  1895  a larger 
degree  of  consolidation  was  brought  about,  similar  to  that  effected 
in  New  York  city  and  county  in  1874.  The  powers  of  the  county 
board  of  supervisors  were  devolved  upon  the  common  council  of  the 
city ; and  several  county-  and  city  officers  were  abolished  and  absorbed 
in  other  offices. 

When  the  greater  New  York  charter  was  passed  in  1897,  it  in- 
cluded in  New  York  City  the  counties  of  New  York,  Kings  and  Rich- 
mond, and  the  western  part  of  Queens  County.  The  remainder  of 
Queens  county  was  about  the  same  time  organized  as  Nassau  County. 
All  of  the  former  municipal  or  public  corporations  within  the  limits 
of  the  greater  city,  except  the  four  counties,  were  abolished  and 
merged  in  the  new  city  government.  Five  new  divisions,  known  as 
boroughs,  were,  however,  created  for  local  municipal  purposes. 

As  to  the  counties,  substantially  the  same  transfer  of  functions, 
which  had  been  previously  made  in  the  counties  of  New  York  and 
Kings,  were  now  made  from  the  former  cities  of  New  York  and 
Brooklyn  and  from  the  counties  of  Queens  and  Richmond  to  the  new 
city  of  New  York.  The  powers  of  boards  of  supervisors  were  trans 
ferred  to  the  board  of  aldermen  and  to  some  city  officers  and  boards. 
Statutory  elective  county  offices  and  some  appointive  county  offices 
were  abolished  and  their  functions  transferred  to  city  officers.  There 
remained,  however,  in  each  county  a number  of  elective  county  officers, 
provided  for  by  the  state  constitution,  which  could  not  be  abolished 
or  consolidated  with  the  city  government ; and  some  appointive  county 


957 


officers  were  also  left  unchanged.  In  1914  a new  county  of  Bronx 
was  organized,  comprising  the  region  previously  in  Westchester 
county;  and  for  this  county  a similar  staff  of  county  officials  has  been 
provided. 

The  extent  of  consolidation  of  county  and  city  government  may 
be  noted  more  definitely.  In  the  first  place,  the  work  of  financial 
administration  has  been  completely  consolidated.  Appropriations  and 
tax  levies  for  county  purposes  are  made  by  the  city  board  of  estimate 
and  apportionment  and  the  board  of  aldermen;  and  the  same  city 
authorities  determine  salaries  for  county  officers,  so  far  as  they  are  not 
fixed  by  state  law.  The  assessment  of  county  taxes  is  made  by  the 
city  department.  The  city  chamberlain  acts  as  treasurer  for  all  of  the 
five  counties.  The  city  comptroller  audits  county  expenditures. 

Supervision  of  county  property  and  public  works,  ordinance 
powers  and  other  auxiliary  powers,  formerly  vested  in  the  boards 
of  supervisors,  are  now  exercised  by  the  board  of  aldermen.  The 
direct  management  of  county  property  is  exercised  by  various  city 
departments,  under  the  general  administrative  control  of  the 
mayor.  All  local  charities  are  in  charge  of  the  city  departments. 

On  the  other  hand,  in  the  administration  of  justice  and  related 
matters,  there  continues  in  each  county  separate  courts  and  county 
officials.  New  York  County  is  a judicial  district  for  the  election  of 
supreme  court  judges;  and  also  elects  seven  judges  of  the  court  of 
general  sessions  and  two  surrogates,  or  probate  judges.  The  other 
counties  elect  county  judges,  and  the  counties  of  Kings,  Queens 
and  the  Bronx  each  elects  a surrogate.  The  following  constitu- 
tional officers  are  elected : 

Supreme  Court  fudges  (New  York  County  1 district). 

15  Countv  fudges  (7  in  New  York,  5 in  Kings,  1 in  each  of 
the  other  counties). 

5 Surrogates  (2  in  New  York,  1 each  in  Bronx,  Kings  and 
Queens). 

5 County  Clerks. 

5 District  Attorneys. 

3 'Registers  (New  York,  Bronx  and  Kings  counties). 

5 Sheriffs. 

In  addition  there  are  the  following  appointive  county  officers, 
provided  by  statute : 

3 Commissioners  of  Records  (2  in  New  York  and  1 in  Kings 
county). 

5 Commissioners  of  Jurors. 

5 Public  Administrators. 

The  cost  of  county  government  for  1914  was  $7,348,010,  as 


shown  below : 

New  County  $4,108,855 

Bronx  County  592  047 

Kings  County  ] ,997,863 

Queens  County 482  483 

Richmond  County  168  762 


Total  $7,348,010 


958 


County  expenditures  had  increased  from  $3,701,910  in  1901, 
largely  as  the  result  of  mandatory  special  legislation,  which  in 
county  matters  is  not  subject  to  the  mayor’s  veto,  as  is  special 
city  legislation.  Nearly  70  per  cent  of  the  total  expenditures  are 
mandatory;  and  9 per  cent  more  is  for  items  for  which  any  reason- 
able expense  necessarily  incurred  must  be  paid;  leaving  about  21 
per  cent  of  the  county  expenditure  discretionary  with  the  local 
authorities. 

In  1915  a study  of  county  government  within  the  City  of  New 
York  was  prepared  for  the  constitutional  convention  of  that  year 
by  the  Commissioner  of  Public  Accounts  and  City  Chamberlain. 
This  pointed  out  the  waste  and  inefficiency  of  the  separate  county 
organizations,  and  urged  a consolidation  of  the  several  counties, 
and  the  merger  of  some  of  the  county  offices  with  municipal  de- 
partments. The  plan  proposed  would  have  reduced  the  number  of 
county  departments  from  40  to  8,  two  of  which  would  be  merged 
with  city  offices,  and  would  have  simplified  elections  and  secured 
better  official  service  and  more  economical  administration.  The 
reduction  in  expenses  was  estimated  at  $1,000,000  a year. 

No  action  was  taken  by  the  constitutional  convention  to  unite 
the  county  governments.  The  proposed  revised  constitution  con- 
tained provisions  for  the  consolidation  of  local  courts  in  the  city; 
but  this  also  failed  on  account  of  the  defeat  of  the  constitution. 

Some  mention  may  be  made  of  the  administrative  subdivisions 
of  New  York  for  municipal  purposes.  The  greater  city  is  divided 
into  five  boroughs,  corresponding  to  the  five  counties;  and  in  each 
borough  there  is  elected  a borough  president,  who  is  a member  of 
the  city  board  of  estimate  and  apportionment,  and  has  supervision 
over  borough  property  and  public  works  including  street  paving 
and  lighting,  sewers  and  public  buildings.  The  boroughs  are  also 
utilized  as  administrative  districts  by  some  of  the  centralized  city 
departments,  as  the  parks;  but  these  are  not  under  the  control  of 
the  borough  president. 

The  city  is  also  divided  into  25  local  improvement  districts, 
for  each  of  which  there  is  a local  improvement  board,  consisting 
of  the  borough  president  and  the  aldermen  (usually  three)  elected 
within  the  district.  These  boards  initiate  and  authorize  local  im- 
provements, subject  to  the  approval  of  the  city  board  of  estimate 
and  apportionment  (and  in  cases  where  the  city’s  share  of  the 
total  cost  is  over  $500,000,  subject  also  to  the  approval  of  the  board 
of  aldermen).1 


Boston,  Suffolk  County  and  the  Metropolitan  District.  Boston 
comprises  much  the  greater  part  of  Suffolk  County,  both  in  area 
and  population ; and  a good  deal  has  been  accomplished  in  the  con- 

1 Arthur  Ludington : The  Relation  of  County  to  City  Government  in  New 

York.  In  Proceedings  of  the  American  Political  Science  Association,  VII,  73 
(1911). 

Henry  Bruere  and  Leonard  M.  Wallstein:  Study  of  County  Government 
within  the  City  of  New  York  and  a plan  for  its  Reorganization  (1915). 


959 


solidation  of  city  and  county  government  for  this  territory.  Blit 
Boston  and  Suffolk  County  comprise  less  than  half  of  the  metro- 
politan urban  area,  which  includes  parts  of  five  counties,  with  a 
complex  array  of  municipal  authorities  and  state  boards,  subject 
to  no  general  supervision  except  that  of  the  state  legislature. 

Suffolk  County  includes,  besides  the  city  of  Boston,  the  much 
smaller  city  of  Chelsea  and  the  two  towns  of  Revere  and  Winthrop. 
The  consolidation  of  city  and  county  functions  began  when  the 
town  of  Boston  was  organized  as  a city  in  1821-2.  At  that  time, 
the  court  of  session  for  Suffolk  County  was  abolished,  and  its  ad- 
ministrative functions  (corresponding  to  those  of  the  county 
board)  were  transferred  to  the  mayor  and  aldermen  of  Boston. 
By  the  present  city  charter  of  1909,  these  functions  are  vested  in 
the  city  council  and  the  mayor.  The  treasurer  and  the  auditor  of 
the  city  of  Boston  act  as  treasurer  and  auditor  for  Suffolk  County. 
The  ownership  and  jurisdiction  of  all  county  property  is  vested 
in  the  city  of  Boston;  and  the  entire  county  expenses,  including 
those  of  judicial  administration,  are  paid  by  the  city  of  Boston. 

Under  the  Massachusetts  judicial  system,  there  are  no  locally 
elected  judges.  The  judges  and  justices  of  the  supreme  judicial 
court,  the  superior  court  (the  judges  of  which  hold  sessions  in  the 
several  counties),  the  probate  court,  and  the  district  and  police 
courts,  are  all  appointed  by  the  governor  and  council ; and  are 
paid  by  the  commonwealth,  except  the  justices  of  the  district  and 
police  courts  who  are  paid  by  the  county.  There  are,  however, 
seven  elective  county  officers  and  a number  of  appointive  county 
positions.  The  elective  county  officers  are : Register  of  probate, 

register  of  deeds,  district  attorney,  sheriff,  clerk  of  the  supreme 
judicial  court  and  two  clerks  of  the  superior  court,  “one  for  crim- 
inal and  one  for  civil  business.”  Among  the  appointive  positions 
are  the  medical  examiners  (who  act  in  place  of  the  coroner)  and 
index  commissioners.  In  1910  there  were  a total  of  596  paid  county 
officials  and  employees,  while  for  the  city  there  was  a total  of 
13,068. 

The  relations  of  Chelsea,  Revere  and  Winthrop  to  countv  and 
city  administration  are  varied  and  peculiar.  They  are  part  of  Suf- 
folk County  for  the  administration  of  justice  and  for  the  election 
of  county  officers.  In  some  matters,  Revere  and  Winthrop  are 
under  the  jurisdiction  of  the  county  commissioners  of  Middlesex 
County;  and  the  aldermen  of  Chelsea  exercise  in  most  cases  the 
functions  of  county  commissioners.  These  three  municipalities 
also  are  freed  from  taxation  for  county  purposes.  This  situation 
has  given  rise  to  some  criticism  ; and  there  has  also  been  complaint 
of  the  unsatisfactory  condition  of  county  finances,  and  of  the  fact 
that  county  employees  are  not  subject  to  the  civil  service  law  and 
regulations. 

It  is  also  urg-ed  that  under  present  conditions  the  court  ex- 
penses borne  by  the  city  of  Boston  are  further  increased  by  the 
trial  in  Suffolk  County  of  a large  and  growing  number  of,  cases 
from  other  counties  in  the  metropolitan  area,  since  the  courts  in 


960 


Boston  are  more  convenient  to  many  parties,  and  especially  to  the 
attorneys  whose  offices  are  located  in  Boston. 

The  metropolitan  area  of  eastern  Massachusetts  has  a population 
of  more  than  a million  and  a half,  of  which  about  700,000  (less  than 
half)  is  within  the  city  limits  of  Boston.  Within  the  metropolitan  area 
are  all  of  one  county  and  portions  of  four  others  (Suffolk,  Middlesex, 
Essex,  Norfolk  and  Plymouth),  39  municipalities,  a state  metro- 
politan park  commission,  and  a state  metropolitan  water  and 
sewer  board ; also  a rapid  transit  commission,  the  police  commis- 
sioner for  Boston  (appointed  by  the  governor),  and  a state  fire 
prevention  commissioner.2 

Under  these  conditions  there  have  inevitably  arisen  conflicts 
of  jurisdiction,  and  duplication  and  waste  of  effort;  and  important 
metropolitan  problems,  such  as  city  planning,  traffic  and  transpor- 
tation, housing  and  industrial  education  have  had  no  satisfactory 
means  of  being  effectively  solved. 

In  1896  a metropolitan  district  commission,  appointed  by  the 
state  legislature  to  investigate  “the  subject  of  a general  municipal 
administration  for  the  city  of  Boston  and  adjoining  municipali- 
ties,” reported  a plan  for  combining  all  the  municipalities  within 
the  metropolitan  area  into  a single  county.  It  was  proposed  to 
vest  in  this  county,  in  addition  to  the  ordinary  county  functions, 
the  functions  exercised  by  the  several  state  metropolitan  boards. 
For  this  county,  there  was  suggested  a county  council,  with  repre- 
sentatives from  the  several  cities  and  towns,  which  were  to  retain 
their  autonomy  in  matters  of  local  government. 

No  action  was  taken  on  this  plan.  There  was  opposition  to  abol- 
ishing the  state  boards ; and  to  the  changes  in  county  lines,  especially 
to  including  the  “shire  towns”  (county  seats)  of  Dedham  and  Cam- 
bridge, which  have  important  county  buildings,  land  records  and 
archives.  But  more  important  was  the  objection  of  the  cities  and 
towns  which  feared  the  loss  of  their  local  autonomy. 

More  recently  (in  1911),  a committee  of  the  Boston  Chamber 
of  Commerce  recommended  a plan  to  “federate”  the  cities  and 
towns  of  the  metropolitan  area,  by  means  of  a metropolitan  council 
of  representatives  of  the  39  municipalities,  with  advisory  powers  only. 
This  had  in  mind  an  official  conference  of  municipal  executives  for 
the  consideration  of  intra-municipal  problems.  A somewhat  similar 
proposal  was  made  by  a “metropolitan  plan  commission”  established 
by  the  legislature  in  1911.  But  no  definite  steps  have  been  taken  as 
yet  toward  carrying  out  even  this  limited  plan  of  co-operation. 

In  1919  Mayor  Andrew  J.  Peters  of  Boston  issued  an  appeal 
for  the  federation  of  the  metropolitan  cities  and  towns  into  a Greater 
Boston.3 

2 Suffolk  County  includes  4 municipalities;  Middlesex,  17;  Essex,  4;  Norfolk, 
12;  and  Plymouth.  2. 

3 O.  C.  Hormell:  The  City  and  County  in  Massachusetts,  Proceedings  of 

the  American  Political  Science  Association,  VII,  61  (1911). 

Report  of  the  Metropolitan  District  Commission,  1896.  “Real  Boston”,  pub- 
lished by  the  Boston  Chamber  of  Commerce,  March.  1911. 

O.  C.  Hormell:  Boston’s  County  Problems,  Annals  of  the  American  Acad- 
emy of  Social  and  Political  Science  (1913). 

Andrew  J.  Peters:  Greater  Boston.  An  appeal  for  the  Federation  of  the 
Metropolitan  Cities  and  Towns  (1919). 


961 


Philadelphia  City  and  County.  Since  1854  the  city  of  Phila- 
delphia has  been  co-terminous  with  the  county  of  Philadelphia ; and 
the  various  subordinate  local  governments  within  the  county  before 
that  time  have  been  consolidated  with  the  city  government.  There 
has  also  been  some  consolidation  of  city  and  county  government;  but 
the  county  government  remains  in  large  part  legally  distinct  from  that 
of  the  city. 

Philadelphia  was  first  organized  under  a charter  granted  by  Wil- 
liam Penn  in  1691 ; and  during  most  of  the  colonial  period  was  gov- 
erned under  a charter  of  1701  by  a close  corporation,  similar  to  that  of 
English  boroughs  before.  1832.  In  1789,  a legislative  charter  estab- 
lished a more  popular  system  of  government,  which  was  frequently 
modified  by  later  acts,  based  on  varied  and  conflicting  lines  of  policy. 
By  the  middle  of  the  nineteenth  century  the  city  government  formed 
a complex  system,  with  responsibility  divided  between  the  mayor 
and  a dozen  council  committees.  At  the  same  time  the  region  out- 
side the  city  had  become  closely  settled,  and  was  governed  by  a mis- 
cellaneous series  of  overlapping  local  authorities.  In  addition  to  the 
county  and  the  city  of  Philadelphia,  there  were  nine  other  incor- 
porated districts,  six  boroughs,  thirteen  townships,  and  ten  other 
legislative  commissions  for  special  purposes  (care  of  the  poor,  the 
port,  health,  etc.,)  a total  of  “forty  corporate  or  quasi-corporate 
bodies  to  manage  the  affairs  of  the  smallest  county  in  the  state,  and 
with  the  help  of  them  all,  it  was  undoubtedly  the  worst  governed, 
from  the  number  of  limited  territorial  divisions  and  incongruous 
powers  and  conflicting  interests  of  these  various  governing  and  ex- 
ecutive institutions.”4 

After  ten  years  of  agitation  and  discussion,  a consolidation  act 
was  passed  on  February  2,  1854.  This  enlarged  the  city  limits  so 
as  to  include  the  territory  in  the  county  of  Philadelphia,  and  abol- 
ished or  absorbed  the  following  local  bodies: 

The  former  city  of  Philadelphia. 

Nine  incorporated  districts:  Southwark,  Northern  Liberties, 

Kensington,  Spring  Garden,  Moyamensing,  Penn,  Richmond,  West 
Philadelphia  and  Belmont. 

Six  boroughs:  Germantown,  Frankford,  Manayunk,  White 

Hall,  Bridesburg  and  Aramingo. 

Thirteen  townships : Passyunk,  Blockley,  Kingessing,  Roxborough, 
Germantown,  Bristol,  Oxford,  Lower  Dublin,  Moreland,  Northern 
Liberties  (unincorporated),  Byberry,  Delaware  and  Penn. 

No  radical  change  was  made  in  the  machinery  of  government  of 
the  former  city,  which  was  merely  extended  to  the  new  territory 
with  some  changes  of  detail  especially  in  regard  to  finance  administra- 
tion. The  municipal  organization  was  highly  complicated,  with  a 
large  number  of  elective  officers,  and  practically  independent  author- 
ities, and  with  no  effective  supervision  or  central  control. 

At  the  same  time  the  identity  and  autonomy  of  the  county 
was  distinctly  preserved.  County  commissioners,  treasurer  and  au- 
ditors were  discontinued,  and  their  functions  transferred  to  city 

4 E.  K.  Price.  History  of  the  Consolidation  of  Philadelphia  (1873)  p.  53. 


962 


officials,5  but  all  other  county  officers  were  retained.  These 
included  the  following  elective  officers:  Judges,  register  of  wills, 

recorder  of  deeds,  clerk  of  quarter  sessions,  district  attorney 
and  coroner;  also  a prothonotary,  appointed  by  the  board  of  judges. 
The  city  councils  were  given  no  control  over  county  officers  except 
that  they  made  appropriations  for  their  expenses,  and  that  inspectors 
of  county  prisons  (elected  by  wards)  were  placed  under  their  super- 
vision. 

The  charter  of  1854  was  frequently  amended  and  modified  by 
subsequent  legislation.  Most  of  these  changes  involved  matters  of 
detail,  and  for  30  years  there  was  little  tendency  to  depart  from  the 
loosely  connected  group  of  public  officials.  An  Act  of  1870,  estab- 
lishing a public  buildings  commission,  emphasized  the  tendency  to- 
wards irresponsible  organs  of  local  government. 

Following  another  period  of  local  discussion,  the  so-called  Bullitt 
charter  for  the  city  of  Philadelphia  was  passed  by  the  legislature  in 
1 885 ; and  went  into  effect  in  April,  1887.  This  made  far-reaching 
changes  in  municipal  organization,  in  the  direction  of  concentration  of 
administrative  authority.  The  number  of  departments  was  reduced  to 
nine,  placed  under  the  executive  control  of  the  mayor,  and  the  councils 
were  limited  to  legislative  functions.  The  two  large  councils  were, 
however,  retained.  Nor  was  any  change  made  in  regard  to  county 
government  at  this  time. 

A further  revision  of  the  Philadelphia  charter  in  1919  makes  im- 
portant changes  in  council  organization.  The  bicameral  system  is 
abandoned,  and  a single  small  council  has  been  established.  This  will 
be  elected  by  the  same  eight  districts  as  elect  state  senators,  the  number 
of  members  from  each  district  being  based  on  the  number  of  voters, 
making  a body  of  21  members,  in  place  of  the  former  two  councils  of 
145  members.  This  continues  the  recent  tendency  towards  concen- 
tration of  authority. 

The  courts  and  county  officers,  however,  remain  as  before.  There 
are  in  Philadelphia  county  five  courts  of  common  pleas  with  three 
judges  each,  an  orphan’s  court  with  five  judges,  and  a municipal 
court  with  nine  judges.  County  officers  include  district  attorney, 
sheriff,  prothonotary,  register  and  clerk  of  the  orphan’s  court,  re- 
corder, clerk  of  the  court  of  quarter  sessions,  treasurer,  county  con- 
troller, receiver  of  taxes,  coroner  and  solicitor. 

Proposals  for  the  merging  of  city  and  county  officers  and  func- 
tions are  being  discussed  in  Philadelphia  and  will  be  presented  to  a 
Commission  on  the  Constitution,  to  be  appointed  by  the  Governor.6 


Baltimore.  Baltimore  was  laid  out  under  an  act  of  1729;  and 
in  1768  the  town  was  made  the  county  seat  of  Baltimore  County. 
In  1798,  it  was  incorporated  as  a city. 


5 A Supreme  Court  decision  in  1883  distinctly  recognized  the  city  con- 
troller as  a county  as  well  as  city  officer;  and  the  city  treasurer  and  city 
commissioners  had  a similar  status.  Taggart  v.  Commonwealth,  102  Pa.  354. 

6Allinson  and  Penrose:  Philadelphia  1681-1887.  Smull’s  Legislative  Hand 

Book,  191§.  National  Municipal  Review,  V1TI,  417  (August,  1919), 


963 


In  1851,  Baltimore  City  was  separated,  from  Baltimore  County; 
and  the  state  constitution  of  that  year,  by  provisions  for  courts  and  for 
the  election  of  members  of  the  legislature,  judges,  court  clerks,  register 
of  wills,  sheriff  and  state’s  attorney,  gave  the  city  the  status  of  a 
county,  though  not  officially  naming  it  as  such.  Since  then  the  local 
government  has  combined  city  and  county  functions. 

The  state  constitution  of  1867  also  contained  many  provisions 
relating  to  Baltimore  City.  In  provisions  for  the  election  of  mem- 
bers of  the  legislature,  judges,  register  of  wills,  sheriff  and  state’s 
attorney,  it  was  placed  on  the  same  footing  as  a county.  There  were 
also  special  provisions  for  a series  of  six  courts  in  Baltimore  City, 
and  a distinct  article  on  the  city  of  Baltimore  dealing  with  its  munici- 
pal government. 

In  1888  the  area  of  the  city  was  nearly  doubled,  hy  the  annexa- 
tion of  a part  of  the  surrounding  belt  of  suburbs.  In  1898  a new 
charter  prepared  by  a commission  was  passed  by  the  general  assembly. 

After  the  adoption  of  the  home  rule  amendment  to  the  Maryland 
constitution,  a charter  was  framed  and  adopted  in  November,  1917. 
This  did  not  attempt  any  fundamental  changes  in  the  city  government ; 
but  in  the  main  codified  the  existing  arrangements  and  placed  them 
on  the  new  home  rule  basis.  The  elective  city  officers  are  the  mayor, 
comptroller  and  president  of  the  second  branch  of  the  city  council, 
elected  at  large,  and  members  of  each  branch  of  the  council  elected 
by  districts  and  wards. 

The  city  charter,  however,  does  not  include  provisions  relating 
to  the  courts  and  county  officers,  which  are  definitely  provided  for  by 
the  state  constitution.  There  are  six  different  courts  in  Baltimore  city : 
two  circuit  courts,  criminal  court,  superior  court,  court  of  common 
pleas  and  city  court.  The  judges  of  these  courts  also  form  collectively 
the  supreme  bench  of  Baltimore  City,  which  acts  as  a central  coor- 
dinating agency.  There  is  also  an  orphans’  court  of  three  judges. 

Clerks  are  elected  for  each  court,  except  the  supreme  bench,  and  a 
register  of  wills  for  the  orphans’  court.  Other  elective  court  officers 
are  the  state’s  attorney,  sheriff  and  surveyor.  Appointed  officers  in- 
clude coroners,  notaries  public,  justices  of  the  peace  (by  the  gover- 
nor), and  constables  (by  the  mayor  and  council).7 


District  of  Columbia.  In  the  local  government  of  the  District 
of  Columbia,  functions  elsewhere  exercised  by  cities,  counties  and 
states  are  combined  to  a considerable  extent ; though  the  several  local 
authorities  are  not  effectively  organized  into  a single  consolidated  gov- 
ernment ; and  some  local  matters  are  controlled  directly  by  agencies  of 
the  United  States  national  government. 

The  territory  ceded  to  the  United  States  by  the  states  of  Maryland 
and  Virginia  for  the  seat  of  the  national  government  formed  a part 

7 Cyclopedia  of  American  Government.  I.  105.  B.  C.  Steiner:  The  Insti- 

tutions and  Civil  Government  of  Maryland.  A.  S.  Niles:  Maryland  Constitu- 
tional Law  (1915).  Baltimore  City  Charter,  1917. 


964 


of  two  Maryland  and  one  Virginia  counties,  and  included  the  two  in- 
corporated towns  of  Alexandria,  Va.  (organized  in  1749  and  incorpor- 
ated in  1779)  and  Georgetown,  Md.  (incorporated  in  1789).  From  the 
cession  in  1790  until  1801,  the  two  parts  of  the  district  remained  under 
the  laws  of  the  two  states. 

In  1801  Congress  divided  the  district  into  two  counties : Washing- 
ton, lying  east  of  the  Potomac  river,  and  Alexandria  west  of  the  river. 
A year  later  the  city  of  Washington  was  incorporated  by  Congress. 
These  governing  agencies  continued  until  1846,  when  Congress  retro- 
ceded to  Virginia  the  part  of  the  District  west  of  the  Potomac.  In  the 
remainder  of  the  District,  the  county  of  Washington,  the  town  of 
Georgetown  and  the  city  of  Washington  continued  in  existence  until 
1871.  From  time  to  time  acts  of  Congress  were  passed  relating  to 
these  local  governments.  In  1861  the  whole  District  was  formed  into 
a Metropolitan  Police  District. 

In  1871  the  separate  county  and  municipal  governments  were  abol- 
ished ; and  a new  government  was  established  for  the  District,  similiar 
to  that  of  the  organized  territories,  but  also  exercising  municipal  func- 
tions. There  was  provided  a governor,  secretary,  board  of  health  and 
board  of  public  works,  all  appointed  by  the  President  with  the  ap- 
proval of  the  Senate.  Members  of  the  council  were  appointed  in  the 
same  way ; while  a house  of  delegates  and  a delegate  in  Congress  were 
elected  by  popular  vote.  The  police  board  was  continued,  and  there 
were  also  four  boards  of  education. 

Under  this  territorial  government  extensive  plans  for  public  im- 
provements were  undertaken,  beyond  the  financial  resources  of  the  Dis- 
trict, which  in  a few  years  became  bankrupt.  In  1874  the  territorial 
government  and  the  elected  delegates  were  abolished,  and  replaced  by  a 
temporary  board  of  commissioners,  appointed  by  the  President  with 
the  approval  of  the  Senate,  and  vested  with  the  executive  powers  of 
the  governor  and  board  of  public  works.  But  the  separate  boards  of 
police,  health  and  education  continued  in  existence. 

In  1878  another  law  for  the  government  of  the  District  was  en- 
acted, which  has  remained  the  basis  of  District  government  until  now, 
though  subject  to  many  changes.  This  law  aimed  at  centralizing  and 
consolidating  local  administrative  authority.  The  board  of  commis- 
sioners was  continued  as  the  main  body  in  control  of  local  administra- 
tion. Two  commissioners  are  appointed  by  the  President  from  resi- 
dents of  the  district,  the  third  is  an  officer  detailed  from  the  engineer 
corps  of  the  army.  The  commissioners  have  enumerated  powers  of 
passing  local  ordinances,  and  have  general  supervision  over  the  admin- 
istrative officers  and  departments,  each  commissioner  being  assigned 
to  a distinct  group  of  subordinate  offices.  In  line  with  the  policy  of 
centralization  in  1878,  the  police  and  health  boards  were  abolished,  and 
the  board  of  education  was  made  subordinate  to  the  commissioners.  In 
addition  to  the  usual  municipal  officers,  the  commissioners  have  super- 
vision over  ths  assessor,  tax  collector,  coroner,  and  insurance  super- 
intendent. Recently  the  commissioners  have  been  made  ex-officio  a 
public  utilities  commission  for  the  District. 


965 


But  the  authority  of  the  commissioners  does  not  cover  the  whole 
field  of  District  affairs  ; and  in  recent  years  there  has  been  an  increasing 
tendency  to  divide  authority.  The  district  courts  and  their  officers  are 
independent  of  the  commissioners.  A board  of  charities  created  in 
1900  is  appointed  by  the  President  and  is  largely  independent,  as  is  also 
the  board  of  education  created  in  1906.  The  supervision  of  banks  is 
vested  in  the  Comptroller  of  the  Currency.  Practically  the  whole  park 
system  and  a large  part  of  the  water  supply  system  are  under  the  con- 
trol of  the  Chief  of  Engineers  of  the  United  States  Army.  St.  Eliza- 
beth’s Hospital  for  the  Insane  is  under  the  U.  S.  Department  of  the 
Interior,  as  is  also  the  Columbia  Institution  for  the  Deaf  and  Dumb. 
The  district  jail  and  reform  schools  are  under  the  supervision  of  the 
Attorney-General  of  the  United  States. 

The  courts  of  the  District  include  a municipal  court,  police  court, 
juvenile  court,  supreme  court  and  court  of  appeals.  All  of  the  judges 
are  appointed  by  the  President,  with  the  approval  of  the  Senate,  as  are 
also  the  marshal,  United  States  Attorney  and  Recorder  of  Deeds.  The 
several  courts  appoint  their  clerks,  and  bailiffs  are  appointed  by  the 
police  court.  The  District  supreme  court  holds  special  terms  as  the 
circuit  court,  the  criminal  court,  the  district  court  of  the  United  States, 
the  equity  court,  the  probate  court  and  the  bankruptcy  court. 

Finally,  Congress  is  the  legislative  and  appropriating  authority  for 
the  District.  The  ordinance  powers  of  the  commissioners  are  less  than 
that  of  municipal  councils ; and  congressional  statutes  for  the  District 
deal  with  matters  often  found  in  municipal  ordinances  as  well  as  mat- 
ters dealt  with  in  state  laws.  Appropriations  are  made  and  taxes  are 
levied  by  Congress. 

While,  therefore,  some  measure  of  consolidation  has  been  ac- 
complished, there  is  room  for  further  concentration  of  authority  both 
as  to  matters  of  local  administration  and  as  to  local  courts,  and  also 
room  for  a more  effective  organization  of  the  relations  of  district 
officials  to  the  United  States  government.8 


St.  Louis.  The  union  of  city  and  county  functions  in  the  local 
government  of  St.  Louis  bears  some  resemblance  to  that  of  Baltimore. 
In  both  cases,  the  city  was  separated  from  the  county  of  which  it  had 
previously  formed  a part ; while  in  the  case  of  Philadelphia  and  San 
Francisco,  consolidation  was  brought  about  by  extending  the  city  to 
include  the  same  area  as  the  county. 

St.  Louis  was  incorporated  as  a town  in  1809,  when  within  the 
territory  of  Louisiana : and  received  a city  charter  from  the  Missouri 
legislature  in  1822.  This  charter  was  frequently  amended,  and  also 
supplemented  and  modified  by  special  laws ; and  changes  increased  in 
number  especially  after  1850.  In  1870  a revised  charter  was  enacted. 
At  that  time  there  was  vigorous  complaint  of  the  control  of  city  affairs 
by  the  state  legislature,  and  the  frequent  changes  by  special  legislation; 

8 W.  F.  Dodd:  Government  of  the  District  of  Columbia.  (1909).  Congres- 

sional Directory. 


966 


and  also  of  extravagance  of  the  county  government.  County  taxes 
were  paid  mostly  by  the  city,  and  expended  very  largely  outside  of  the 
city ; and  the  double  system  of  government  was  felt  to  involve  useless 
waste.9 

A Taxpayers  League,  organized  in  1872,  was  influential  in  advo- 
cating the  separation  of  the  city  and  county,  in  the  constitutional  con- 
vention of  1875,  and  in  securing  the  subsequent  adoption  of  a new 
charter. 

In  the  constitution  of  1875,  provisions  were  adopted  requiring  gen- 
eral laws  and  prohibiting  special  legislation  on  local  government,  and 
also  placing  restrictions  on  municipal  debt.  In  addition  a series  of  pro- 
visions were  adopted  for  any  city  with  a population  of  over  100,000 
inhabitants,  and  another  series  of  special  and  more  detailed  provisions 
for  St.  Louis,  authorizing  the  consolidation  of  city  and  county  govern- 
ment and  the  framing  and  adoption  of  home  rule  charters  by  such 
cities. 

Under  the  special  provisions  for  St.  Louis,  a board  of  freeholders 
might  be  elected  by  the  city  and  county : “To  propose  a scheme  for  the 
enlargement  and  definition  of  the  boundaries  of  the  city,  the  reorgani- 
zation of  the  government  of  the  county,  the  adjustment  of  the  relations 
between  the  city  thus  enlarged  and  the  residue  of  St.  Louis  County,  and 
the  government  of  the  city  thus  enlarged,  by  a charter  in  harmony  with 
and  subject  to  the  constitution  and  laws  of  Missouri.”  The  proposed 
scheme  should  then  be  submitted  to  the  voters  of  the  whole  county,  and 
the  charter  to  the  voters  of  the  city  as  enlarged. 

The  constitution  also  contained  some  specific  provisions  affecting 
the  adjustments  between  the  city  and  county,  and  also  required  the 
charter  to  provide  for  a chief  executive  and  two  houses  of  legislature, 
and  authorized  a gradation  of  tax  rates  in  the  territory  annexed  to  the 
city. 

Under  these  provisions  a board  of  freeholders  was  elected  on 
April  4,  1876;  and  a scheme  of  separation  and  a new  charter  were 
submitted. to  the  voters  on  August  22,  1876.  In  the  face  of  a good  deal 
of  opposition,  both  the  scheme  and  the  charter  were  declared  adopted, — 
the  former  by  a vote  of  12,181  to  10,928 ; the  latter  by  a vote  of  11,309 
to  8,088. 

The  charter  of  1876  eliminated  a number  of  duplicate  authorities — 
notably  the  county  court  of  seven  members,  which  had  exercised  the 
functions  of  a county  board.  But  the  governmental  machinery  re- 
mained highly  complicated,  with  an  elaborate  series  of  checks  and  bal- 
ances. The  municipal  assembly  was  composed  of  two  houses  (as  re- 
quired by  the  state  constitution),  a council  elected  at  large  and  a house 
of  delegates  elected  by  wards.  There  were  fifteen  elective  administra- 
tive officers,  for  city  and  county  purposes.  The  mayor  had  a large 
power  of  appointment  in  the  middle  of  his  four-year  term.  A board 
of  public  improvements  made  provision  for  correlation  in  connection 
with  public  works. 


9 This  situation  may  be  contrasted  with  that  of  San  Francisco  in  1856, 
when  criticism  was  directed  at  the  city  government,  while  the  county  govern- 
ment was  considered  economical  and  efficient. 


967 


Financial  results  under  the  new  charter  seem  to  have  been  highly 
satisfactory.  Expenses  and  taxes  were  reduced.  The  abolition  of  the 
county  court,  some  county  offices  and  the  county  tax  resulted  in  im- 
portant savings.  The  issue  of  so-called  “anticipation  bonds”  was  re- 
duced from  $1,550,000  in  1875-6  to  $350,000  in  1879-80.  The  board  of 
public  improvements  worked  well,  reducing  expenses  while  securing 
better  improvements. 

The  new  arrangements  thus  appear  to  have  secured  a large  im- 
provement in  respect  to  city  and  county  matters  and  more  efficient  ad- 
ministration. State  legislation  was  also  reduced  to  a considerable  ex- 
tent, but  was  not  entirely  eliminated.  It  was  recognized  from  the  out- 
set that  the  city’s  charter  powers  did  not  authorize  it  to  supersede  the 
courts  or  the  existing  state-appointed  police  board.  Subsequent  state 
laws  provided  for  a state  excise  commission  (in  1893),  a board  of  elec- 
tion commissioners  (in  1895),  and  a locally  elected  board  of  education 
(in  1897).  Judicial  decisions  have  held  that  state  laws  regulating  edu- 
cation, elections,  police,  public  utilities  and  other  matters  of  state  con- 
cern supersede  charter  provisions  on  these  subjects.  It  has  also  been 
held  that  each  city  with  home  rule  charter  powers  constitutes  a distinct 
class,  for  which  the  legislature  may  enact  laws  on  such  subjects  of  state 
concern. 

From  time  to  time  attempts  were  made  to  amend  the  charter  of 
1876.  But  most  of  these  failed,  many  because  of  the  requirement  of 
three-fifths  of  the  total  vote  at  the  election.  Five  amendments,  sub- 
mitted at  special  elections  were  adopted.  As  time  progressed,  the  de- 
mand for  charter  changes  grew  stronger.  Corruption  appeared  in  the 
city  government,  and  officials  were  convicted  of  bribery.  Amendments 
aimed  at  preventing  further  instances  of  this  kind,  and  to  secure  a 
simpler  and  more  efficient  government  were  urged. 

To  meet  difficulties  caused  by  some  of  the  details  in  the  original 
constitutional  provisions,  a constitutional  amendment  was  proposed  by 
the  legislature  in  1901  and  ratified  by  the  voters  in  1902.  This  omitted 
the  limitation  upon  the  proposal  of  charter  amendments  to  “intervals 
of  not  less  than  two  years” ; provided  that  charter  amendments  could 
be  adopted  by  three-fifths  of  those  voting  on  the  question ; expressly 
authorized  a general  revision  of  the  charter;  omitted  the  limit  of  90 
days  on  the  time  given  the  board  of  freeholders ; and  substituted  for  the 
requirement  of  two  houses  of  legislation,  “at  least  one  house  of  legisla- 
tion to  be  elected  by  general  ticket.” 

After  several  years  of  further  delay,  a new  board  of  freeholders  to 
revise  the  charter  was  elected  in  1909.  But  the  revised  charter  was 
rejected  by  a vote  of  65,324  to  24,817  (January  31,  1911).  In  1913 
another  board  of  freeholders  was  chosen,  and  its  work  was  ratified, 
June  30,  1914,  by  a vote  of  46,839  to  44,158. 

The  revised  charter  provides  a much  simpler  organization,  with  a 
single  board  of  aldermen,  a mayor  with  large  powers  of  control,  a 
shorter  ballot,  a.  limited  number  of  departments,  and  the  initiative, 
referendum  and  recall.  The  only  elective  city  officers  are  the  mayor, 
comptroller  and  aldermen,  (28  elected  at  large,  but  one  alderman  must 
be  a resident  of  each  ward.)  The  mayor  appoints  the  efficiency  board 


968 


and  the  directors  of  five  departments,  who  together  form  a board  of 
public  service.  The  mayor,  comptroller  and  president  of  the  board  of 
aldermen  form  a board  of  estimate  and  apportionment. 

There  are,  however,  also  a number  of  elective  officials  provided  by 
state  laws;  judges  of  the  circuit,  criminal,  police  and  probate  courts, 
circuit  attorney,  prosecuting  attorney,  sheriff,  coroner,  recorder  of 
deeds,  public  administrator,  license  collector,  and  justices  of  the  peace; 
also  the  police  and  excise  commissioners  and  the  election  board,  ap- 
pointed by  the  governor;  and  the  locally  elected  board  of  education. 

Some  problems  have  developed  with  the  expansion  of  urban  popu- 
lation beyond  the  limits  established  in  1876;  and  there  is  no  provision 
for  the  further  extension  of  the  city.  The  state  law  provides  that  no 
city  or  town  shall  be  incorporated  within  two  miles  of  the  limit  of  any 
other  city  or  town  in  the  same  county.  But  as  the  city  of  St.  Louis  is 
not  in  St.  Louis  county,  this  does  not  prevent  the  incorporation  of 
suburban  municipalities  immediately  adjacent,  and  a complicated  group 
of  neighboring  municipalities  are  developing.  Questions  of  water 
supply,  sewage  disposal  and  the  preservation  of  public  order  in  these 
adjacent  sections  outside  of  the  city  are  becoming  important.  Gambling 
and  other  disorderly  and  illegal  enterprises  have  been  carried  on  just 
across  the  line,  and  cannot  be  suppressed  by  the  city.  The  supreme 
court  has  held  that  even  the  police  of  the  city  which  are  under  the  direct 
authority  of  the  governor,  cannot  make  arrests  in  St.  Louis  county. 

Such  problems,  however,  and  the  difficulties  arising  from  state 
laws,  which  limit  the  scope  of  local  control  over  the  machinery  of  local 
government,  do  not  destroy  the  advantages  which  have  resulted  from 
even  the  partial  consolidation  of  city  and  county  functions  made  pos- 
sible by  the  separation  of  the  city  of  St.  Louis  from  St.  Louis  county.10 


San  Francisco  City  and  County.  San  Francisco  County  was 
formed  by  an  act  of  the  first  legislature  of  the  state  of  California, 
passed  February  18,  1850.  The  city  of  San  Francisco  was  created  by 
an  act  of  April  15,  in  the  same  year,  with  a distinct  list  of  officers  in- 
dependent of  the  county.  Additional  legislation,  both  for  the  county 
and  for  the  city  was  passed  during  the  next  few  years.  The  city  gov- 
ernment soon  became  notorious  for  its  corruption,  inefficiency  and  ex- 
travagance ; while  the  county  government  was  considered  economical 
and  efficient.  A popular  reform  movement  led  to  the  formation  of  the 
famous  Vigilance  Committee,  which  was  followed  by  a demand  for  the 
elimination  of  the  dual  machinery  of  government ; and  this  resulted  in 
the  passage,  on  April  19,  1856,  of  an  act  “To  repeal  the  several  char- 

lu  Truman  Post  Young:  The  Scheme  of  Separation  of  City  and  County 

Government  in  St.  Louis — its  History  and  Purposes.  In  Proceedings  of  the 
American  Political  Science  Association  VIII.  97  (1911). 

Samuel  B.  McPheeters:  Saint  Louis.  In  Cyclopedia  of  American  Govern- 
ment, III.  245  (1914). 

Isidor  Loeb:  Municipal  Home  Rule  in  Missouri.  In  Proceedings  of  the 
Illinois  Municipal  League,  IV.  43  (1917). 

Roger  N.  Baldwin : St.  Louis  Successful  Fight  for  a Modern  Charter. 

In  National  Municipal  'Review,  III,  720  (1914). 

St.  Louis:  A Preliminary  Survey  of  Certain  Departments  (1910). 


969 


ters  of  the  city  of  San  Francisco,  to  establish  the  boundaries  of  the 
City  and  County  of  San  Francisco,  and  to  consolidate  the  government 
thereof”. 

By  the  Consolidation  Act,  duplication  of  offices  was  largely  re- 
duced. A board  of  supervisors,  elected  by  wards,  with  a president, 
took  the  place  of  the  county  board  and  the  mayor  and  bicameral  coun- 
cil. One  treasurer,  one  assessor  and  one  attorney  replaced  former  city 
and  county  officers.  The  constitution,  however,  required  the  election  of 
a county  judge,  county  clerk,  district  attorney,  sheriff  and  coroner;  and 
other  elective  executive  officers  were  provided, — a total  of  17  at  large 
and  72  by  wards. 

The  new  government,  under  new  officials,  proved  “a  marvel  of 
economy”.  Expenses  of  the  city  and  county  were  reduced  from 
$2,646,000  in  1855  to  $353,000  in  1857.  Much  of  this  saving  was 
ascribed  to  the  Consolidation  Act.  In  the  constitutional  convention  of 
1879,  it  was  said  that  consolidation  reduced  the  number  of  offices  and 
expenses. 

Modified  by  numerous  amendments  and  supplemental  legislation, 
the  Consolidation  Act  remained  the  basis  of  local  government  in  San 
Francisco  for  more  than  forty  years.  A new  legislative  charter,  passed 
in  1880,  was  held  invalid,  on  the  ground  that  it  had  not  been  submitted 
to  the  people.  Under  the  home  rule  provisions  of  the  state  constitution 
of  1879,  new  charters  prepared  by  local  boards  of  freeholders  were 
submitted  in  1883,  1887  and  1895,  each  to  be  defeated  in  turn.  At 
length,  in  1898  another  charter  was  submitted  and  approved,  and  went 
into  effect  January  1,  1900.  This  in  turn  has  been  amended  from 
time  to  time,  notably  by  the  work  of  a new  charter  board  in  1910. 

Under  the  home  rule  charter,  as  under  the  Cpnsolidation  Act,  the 
city  and  county  are  co-extensive  in  area,  with  a single  system  of  gov- 
ernment. The  machinery  has  been  simplified  and  centralized  to  some 
extent.  The  board  of  supervisors  now  has  eighteen  members,  elected 
at  large.  The  mayor,  county  clerk,  auditor,  district  attorney,  sheriff 
and  coroner  are  elected  at  one  biennial  election ; and  the  tax  collector, 
recorder,  city  attorney,  public  administrator  and  treasurer,  at  the  next ; 
all  for  four-year  terms.  There  are  also  four  police  judges  elected  for 
four-year  terms,  one-half  at  each  biennial  election.  The  principal  city 
departments  are  in  charge  of  boards  appointed  by  the  mayor. 

Six  of  the  eleven  elective  administrative  officers  are  county  officers 
who  must  be  provided  to  comply  with  constitutional  requirements.  The 
legislature  may  also  create  additional  county  officers ; but  under  the 
county  home  rule  provisions  now  in  the  California  constitution,  the 
method  and  manner  of  selection  and  the  compensation  and  term  of 
these  additional  officers  may  be  determined  in  the  local  charter. 

The  number  of  officials  acting  in  a dual  capacity  as  both  city  and 
county  officers  has  been  increased,  thus  affecting  considerable  economy. 
In  addition  to  the  board  of  supervisors,  treasurer,  assessor  and  city  at- 
torney (under  the  Consolidation  Act  of  1856)  the  auditor  and  tax  col- 
lector act  both  in  city  and  county  business ; and  the  district  attorney,  a 
county  officer,  also  prosecutes  for  the  violation  of  city  ordinances. 


970 


An  extended  report  on  the  government  of  the  city  and  county  of 
San  Francisco,  prepared  for  the  San  Francisco  Real  Estate  Board  in 
1916,  contained  important  recommendations  for  changes  in  the  charter 
and  machinery  of  local  government.  These  included  proposals  to  make 
the  mayor  definitely  responsible  for  administrative  leadership,  to  make 
the  board  of  supervisors  solely  a legislative  and  reviewing  body,  to 
make  the  assessor  and  the  tax  collector  appointive  officers,  to  combine 
certain  departments  and  reorganize  others,  and  to  place  a number  of 
departments  under  single  commissioners  in  place  of  boards.  These 
recommendations  would  reduce  the  number  of  elective  officers  and 
simplify  the  machinery  of  government. 

Another  problem  is  that  of  extending  the  territorial  area  of  the 
city  and  county.  This  is  now  only  about  40  square  miles.  Any  ad- 
dition to  the  city  involves  a change  in  county  boundaries ; and  under 
the  present  provisions  of  the  state  constitution  a change  in  county  lines 
is  practically  impossible.11 


City  and  County  of  Denver.  Denver  had  its  origin  in  several 
mining  settlements  established  during  1858  at  Cherry  Creek,  then  in  the 
western  part  of  Kansas.  In  November,  1859,  a provisional  territorial 
government  was  set  up,  which  on  December  5,  passed  an  “Act  to  char- 
ter and  consolidate  the  towns  of  Denver,  Aurora  and  Highland”.  Two 
years  later  the  first  territorial  legislature  of  Colorado  was  legally  or- 
ganized, under  Act  of  Congress;  and  on  November  7,  1861,  this  body 
granted  a city  charter  to  Denver,  confirming  the  acts  of  the  provisional 
government.  The  same  legislature  also  created  the  County  of  Arapa- 
hoe, with  an  area  of  4,860  square  miles,  of  which  Denver  became  the 
county  seat. 

The  city  charter  was  amended  and  revised  from  time  to  time  as 
in  the  case  of  other  American  cities.  At  first  the  council  was  the 
dominant  factor  in  the  city  government.  Later  the  powers  of  the 
mayor  were  increased,  notably  in  1876.  In  1885  a bicameral  council 
was  established.  In  1889  a state-appointed  board  of  public  works  was 
established;  and  in  1891  a state-appointed  fire  and  police  board.  In 
1893  several  neighboring  municipalties  were  annexed;  and  a new  city 
charter  reorganized'  the  administrative  machinery ; but  the  state  boards 
were  continued,  and  the  local  government  continued  to  lack  unity  or 
responsibility.  State  and  local  party  politics  and  public  service  corpora- 
tions were  important  factors  in  much  of  the  legislation  affecting  the 
city. 

n Percy  V.  Long-:  Consolidated  City  and  County  Government  of  San 

Francisco.  In  Proceedings  of  the  American  Political  Science  Association,  VII, 
109  (1911). 

Conferences  on  Good  City  Government:  1894-5.  Isaac  J.  Milliken:  Mu- 
nicipal Condition  of  San  Francisco;  1901  J.  Richard  Freud:  Municipal  Affairs 
in  San  Francisco:  1903  Frank  J.  Symmes:  The  Municipal  Situation  in  San 
Francisco. 

Thomas  H.  Reed:  San  Francisco:  In  Cyclopedia  of  American  Government, 

III,  251  (1914). 

Report  on  a Survey  of  the  Government  of  the  City  and  County  of  San 
Francisco  (1916). 


971 


A movement  for  a constitutional  amendment  for  home  rule  and 
consolidation  of  local  governments  developed.  This  was  promoted  by 
difficulties  in  making  further  annexations  to  the  city,  by  constitutional 
obstacles  to  the  union  of  the  several  school  districts  within  the  city,  and 
by  the  desire  to  separate  the  urban  section  from  the  greater  part  of 
Arapahoe  county  which  extended  eastward  160  miles  to  the  Kansas 
line.  A proposed  amendment  was  passed  by  the  legislature  in  190.1, 
authorizing  municipal  home  rule  charters  for  all  cities  of  over  2,000 
population,  and  with  special  provisions  for  the  consolidation  of  city  and 
county  government  in  Denver ; and  this  amendment  was  ratified  at  the 
election  of  1902  as  Article  XX  of  the  state  constitution. 

The  new  Article  contained  eight  sections,  six  of  which  dealt  with 
the  city  and  county  of  Denver.  Section  1 provides  that : 

“The  municipal  corporation  known  as  the  city  of  Denver,  and  all 
municipal  corporations  and  that  part  of  the  quasi-municipal  corporation 
known  as  the  county  of  Arapahoe,  in  the  State  of  Colorado,  included 
within  the  territorial  boundaries  of  the  said  city  of  Denver,  as  the  same 
shall  be  bounded  when  this  amendment  takes  effect,  are  hereby  con- 
solidated and  are  hereby  declared  to  be  a single  body  politic  and  cor- 
porate, by  the  name  of  the  ‘City  and  County  of  .Denver’.”  This  in- 
cluded within  the  city  and  county  six  former  towns,  and  a total  area  of 
591/2  square  miles.  This  section  also  provided  for  further  annexations 
of  contiguous  territory;  and  in  addition  to  vesting  the  municipality 
with  all  property  of  the  city  of  Denver  and  the  included  municipalities, 
gave  power  to  construct,  acquire,  maintain  and  operate  water  works, 
light,  power  and  heating  plant,  transportation  systems  and  any  other 
public  utilities. 

Section  3 provided  for  the  transfer  of  government,  and  specifically 
provided  for  merging  the  existing  city  and  county  officers.  Sections  4 
and  5 set  forth  the  procedure  for  framing  and  adopting  a charter,  and 
for  new  charters,  amendments  and  measures.  Section  7 provided  for 
consolidating  and  merging  the  various  school  districts. 

Section  6 authorized  all  cities  of  the  first  and  second  class  to  frame, 
adopt  and  amend  their  charters ; and  section  8 declared  that  any  pro- 
visions in  the  state  constitution  inconsistent  with  this  amendment  to  be 
inapplicable  to  matters  covered  by  the  amendment. 

Under  the  provisions  of  the  amendment  a charter  convention  was 
elected  on  June  2,  1903.  Its  work  was  completed  on  August  1,  and  the 
charter  was  submitted  to  popular  vote  on  September  22.  Opposition  by 
the  party  organizations  and  public  utility  corporations  led  to  its  defeat. 

On  December  2,  a second  charter  convention  was  elected.  This 
body  eliminated  from  the  defeated  charter  provisions  which  cut  off 
political  patronage  and  those  which  restricted  the  public  utility  com- 
panies, continued  the  bicameral  council,  and  amended  the  initiative  and 
referendum  provisions.  But  the  structural  machinery  for  a centralized 
mayoralty  government  was  retained.  The  revamped  charter  was  voted 
for  on  March  29,  1904,  and  was  adopted.  The  first  election,  was  held 
on  May  17,  and  the  new  government  began  on  June  1. 

Meanwhile  legal  controversies  were  begun  which  continued  for 
nearly  ten  years,  and  delayed  the  enforcement  of  some  consolidation 


972 


features.  In  the  first  case,  the  validity  of  the  constitutional  amend- 
ment as  a whole  was  attacked ; but  the  amendment  was  upheld  both  by 
the  Supreme  Court  of  the  State  and  the  United  States  Circuit  Court.12 
In  a second  case,  it  was  decided  that  the  state-appointed  boards  became 
part  of  the  new  municipality,  and  their  members  were  no  longer  subject 
to  appointment  and  removal  by  the  governor.13 

But  in  1905  a reorganized  Supreme  Court,  enlarged  from  three  to 
seven  members,  held  that  the  amendment  must  be  considered  as  limited 
to  local  affairs,  and  that  not  even  by  constitutional  amendment  could 
the  people  of  the  state  delegate  to  local  authorities  the  power  to  regu- 
late county  offices,  which  were  considered  to  be  essential  state  offices.14 
This  decision  did  away  for  a time  with  the  merger  of  city  and  county 
offices,  which  was  plainly  and  specifically  set  forth  in  the  constitutional 
amendment ; and  a dual  set  of  city  and  county  officers  was  restored. 

Other  decisions  about  this  time  and  during  several  years  tended  to 
limit  the  powers  of  the  municipality  by  broad  construction  and  in- 
terpretation of  state  statutes,  which  it  was  held  could  not  be  limited  by 
the  powers  conferred  by  Article  XX. 

In  1911,  however,  with  a new  personnel  in  the  Supreme  Court,  the 
decision  in  the  Johnson  case  was  overruled.  Returning  to  the  opinion 
in  the  earliest  case  upholding  Article  XX,  and  following  the  dissenting 
opinion  in  the  Johnson  case,  it  was  held  that  this  amendment  being 
part  of  the  state  constitution  must  be  enforced  by  the  courts,  and  that 
the  consolidation  of  city  and  county  offices  provided  for  did  not  do 
away  with  county  government  and  was  authorized  by  the  fundamental 
law  of  the  state.15 

This  decision  brought  into  force  again  the  provisions  of  the  charter 
for  the  consolidation  and  merger  of  city  and  county  offices ; and  has 
put  to  rest  the  legalistic  objections  to  the  validity  of  consolidation  au- 
thorized by  the  state  constitution. 

A further  amendment  to  the  state  constitution  adopted  in  1912 
added  to  the  specified  powers  of  cities  under  the  home  rule  provisions. 

Further  changes  have  been  made  in  the  structure  of  city  govern- 
ment. A charter  convention  in  1913  provided  for  the  commission  form 
of  government.  But  after  three  years,  the  charter  was  again  amended 
in  1916,  restoring  the  city  council  and  vesting  the  mayor  with  greatly 
extended  powers,  so  that  he  has  been  called  an  “elected  manager.” 

The  consolidation  of  city  and  county  government  in  Denver  has 
led  more  thoroughly  than  elsewhere  to  a short  ballot ; and  partisan  in- 
fluence in  elections  has  been  reduced  by  abandoning  the  party  column 
ballot.  Of  seventeen  elective  county  positions,  only  two  remain.  The 
number  of  local  elections  has  been  reduced  to  a single  municipal  elec- 
tion. The  elective  officers  are  the  mayor,  president  and  members  of  the 
council,  county  judge,  and  school  commissioners.  Under  the  amend- 
ment of  1916,  the  mayor  appoints  the  heads  of  all  administrative  de- 
partments, and  all  commissions,  boards  and  offices  under  his  control. 
The  appointive  officers  include  the  managers  of  the  several  depart- 

12  People  v.  Louis,  31  Colo.  369:  Watts  v.  Elder,  U.  S,  Circuit  Court. 

13  People  v.  Adams,  31  Colo.  476. 

14  People  v.  Johnson,  34  Colo.  143. 

15  People  v.  Cassidy,  50  Colo.  503. 


973 


ments,  city  clerk,  city  attorney,  city  engineer,  municipal  judges  and 
superintendent  of  schools. 

The  work  of  the  county  commissioners  has  been  taken  over  by  the 
council  and  various  city  departments.  The  sheriff’s  office  has  been 
merged  with  the  police  department.  The  functions  of  the  county 
treasurer  and  county  assessor  have  been  taken  over  by  the  revenue  de- 
partment. The  city  clerk  acts  as  county  clerk  and  recorder;  the  city 
attorney  as  county  attorney ; and  the  city  engineer  as  county  surveyor. 
Two  municipal  judges  have  taken  over  the  work  of  three  justices  of 
the  peace.  One  superintendent  of  schools  serves  the  whole  city. 

The  merging  of  city  and  county  offices  has  eliminated  overlapping 
jurisdiction  to  a large  extent,  though  not  entirely.  Some  duplications 
have  been  retained.  The  union  of  the  sheriff’s  office  with  the  police 
department  has  eliminated  conflicts,  which  were  notable,  especially 
when  the  two  were  controlled  by  different  political  parties. 

A comparative  statement  of  county  expenses  for  1911  (when  the 
dual  set  of  officers  was  in  existence)  and  1917  shows  a reduction  from 
$679,100  to  $476, 60016 


City  and  County  of  Honolulu.  Local  government  has  de- 
veloped slowly  in  the  Hawaiian  Islands.  But  consolidation  of  city  and 
county  government  has  been  established  in  Honolulu. 

After  an  unsuccessful  attempt  in  1903,  an  act  of  the  Hawaiian 
legislature  in  1905  created  five  counties, — each  of  the  four  principal 
islands  forming  a separate  county.  Two  years  later,  the  county  of 
Oahu  (the  largest  island)  was  reincorporated  as  the  City  and  County 
of  Honolulu.  The  elective  officers  are  a mayor,  7 supervisors  (elected 
at  large),  sheriff,  clerk,  auditor,  attorney  and  treasurer.  There  is  also 
a circuit  and  a district  court.  Subordinate  officers  and  departments  in- 
clude the  fire,  parks,  engineer,  electric  light,  garbage  and  roads  depart- 
ments, the  public  schools,  city  and  county  physician  and  insanity  com- 
mission. 

A charter  convention  was  provided  for  in  1915,  but  the  new  char- 
ter passed  by  the  legislature  was  vetoed  by  the  governor.  Local  elec- 
tions have  been  separated  from  the  territorial  elections,  beginning  in 
June,  1917. 17 


Other  consolidation  provisions  and  plans.  In  Virginia,  coun- 
ties have  no  jurisdiction  over  cities ; and  all  cities  in  that  state  combine 
to  some  extent  city  and  county  functions.  From  the  first  state  consti- 
tution of  1776,  separate  representation  in  the  state  legislature  has  been 
given  to  cities  and  boroughs  as  well  as  to  counties.  The  constitution  of 
1850  provided  for  the  election  of  a circuit  court  clerk  and  attorney  of 

16  King,  C.  L.  History  of  the  City  and  County  of  Denver  (1911);  Guthrie, 
W.  B.,  The  City  und  County  of  Denver  (1917). 

17  Reports  of  the  Governor  of  Hawaii. 


974 


the  commonwealth  in  each  corporation  and  county  in  which  a circuit 
court  should  be  held ; and  also  authorized  the  creation  of  corporation 
courts. 

The  constitution  of  1869  contained  a series  of  provisions  for  the 
government  of  cities  and  towns.  These  provided  for  a city  judge  in 
each  city  or  town  of  over  5,000  population,  and  for  the  election  in  each 
city  or  town  of  the  following  officers: 

A clerk  of  the  corporation  court,  who  shall  also  be  clerk  of  the 
circuit  court,  except  in  cities  or  towns  of  30,000  or  more,  in  which  a 
separate  circuit  court  clerk  may  be  elected ; 

A commonwealth’s  attorney; 

A city  sergeant; 

A city  or  town  treasurer,  whose  duties  shall  be  similiar  to  those  of 
county  treasurer; 

A commissioner  of  revenue,  and  a mayor. 

The  present  constitution  of  Virginia  (1902)  contains  similar  pro- 
visions for  the  election  in  cities  of  court  clerks,  commonwealth  at- 
torneys, sergeants,  etc.,  exercising  functions  usually  assigned  to  county 
officers. 

The  Michigan  constitution  of  1850  authorized  the  legislature  to  or- 
ganize any  city  of  20,000  inhabitants  into  a separate  county,  when  ap- 
proved by  the  voters  of  the  county  in  which  the  city  is  situated.  In  the 
constitution  of  1908,  this  provision  was  amended  to  read  as  follows : 
“When  any  city  has  attained  a population  of  one  hundred  thousand 
inhabitants,  the  legislature  may  organize  it  into  a separate  county  with- 
out reference  to  geographical  extent,  if  a majority  of  the  electors  of 
such  city  and  of  the  remainder  of  the  county  in  which  such  city  may  be 
situated  voting  on  the  question  shall  each  determine  in  favor  of  or- 
ganizing the  city  into  a separate  county”. 

The  Minnesota  constitution  has  the  same  provision  as  the  Michi- 
gan constitution  of  1850,  as  follows:  “The  legislature  may  organize 

any  city  into  a separate  county,  when  it  has  attained  a population  of 
20,000  inhabitants,  without  reference  to  geographical  extent,  when  a 
majority  of  the  electors  of  the  county  in  which  such  city  may  be  situ- 
ated, voting  thereon,  shall  be  in  favor  of  a separate  organization.” 

The  Missouri  constitution  of  1875,  in  addition  to  the  provisions  for 
the  separation  of  St.  Louis  city  and  county,  provides  that : “In  all 

counties  having  a city  therein  containing  over  one  hundred  thousand 
inhabitants,  the  city  and  county  government  thereof  may  be  consoli- 
dated in  such  manner  as  may  be  provided  by  law.” 

The  California  constitution  contains  the  following  provisions  for 
city  and  county  consolidation : 

“The  legislature  may  provide  by  general  laws  for  the  performance 
by  county  officers  of  certain  municipal  functions  of  incorporated  cities 
when  a majority  of  the  electors  of  such  city  voting  at  a general  or 
special  election  so  determine. 

“Cities  framing  their  own  charters  may  by  provision  therein  or 
amendment  provide  for  the  performance  by  county  officers  of  certain 
municipal  functions  when  the  discharge  of  such  functions  is  authorized 
by  general  law  or  by  a county  charter  framed  under  the  constitution. 


975 


r 

“City  and  county  governments  may  be  merged  and  consolidated 
into  one  municipal  government,  with  one  set  of  officers,  and  may  be  in- 
corporated under  general  laws  providing  for  the  incorporation  and 
organization  of  corporations  for  municipal  purposes.  The  provisions 
of  this  constitution  applicable  to  cities,  and  also  those  applicable  to 
counties,  so  far  as  not  inconsistent  or  not  prohibited  to  cities,  shall  be 
applicable  to  such  consolidated  government.”18 

Plans  for  consolidated  city  and  county  government  have  been 
actively  discussed  in  Los  Angeles  and  in  Alameda  county.  In  Los 
Angeles,  it  has  been  proposed  to  organize  the  southern  part  of  Los 
Angeles  county,  including  the  city  of  Los  Angeles  and  a number  of 
other  municipalities  into  a city-county.  An  extended  report  issued  by 
the  Tax  Payers’  Association  of  California  in  1917  presents  the  ad- 
vantages in  reducing  elections,  a unified  school  system,  the  reorganiza- 
tion of  courts,  gains  in  efficiency,  and  financial  savings,  estimated  at  a 
minimum  of  $2,688,000.  A report  of  the  Los  Angeles  Realty  Board, 
however,  opposed  the  division  of  Los  Angeles  County.19 

In  Alameda  county,  proposals  for  a federated  city  and  county 
government  have  been  prepared  and  discussed.  These  include  plans  for 
a series  of  boroughs  within  the  county  (for  the  existing  cities  of  Berke- 
ley, Oakland,  Alameda  and  other  places),  each  retaining  its  identity, 
controlling  local  taxes,  and  with  powers  of  police  and  health  regulation, 
public  works,  police  and  fire  departments.  The  proposed  central  gov- 
ernment included  a board  of  supervisors,  with  a manager  and  twelve 
departments  (dealing  with  taxation  and  finance,  schools,  purchases, 
police,  attorney,  municipal  court,  library,  city  planning  and  civil  serv- 
ice), taking  the  place  of  125  existing  agencies. 

A detailed  amendment  to  the  California  constitution,  adopted  in 
1918,  contains  a series  of  alternative  provisions  apparently  intended  to 
apply  to  the  Alameda  county  situation.  Such  detailed  constitutional 
provisions,  however,  seem  likely  to  cause  trouble  in  the  future  when 
changes  may  be  needed.20 

Within  the  last  few  years  the  question  of  city  and  county  consoli- 
dation has  been  advocated  in  Ohio.  The  matter  was  brought  before  the 
General  Assembly  in  1917,  and  after  some  investigation  of  local  con- 
ditions in  the  more  populous  counties,  a resolution  for  a constitutional 
amendment  was  introduced  to  permit  counties  with  a city  of  over 
100,000  to  reorganize  and  consolidate  the  local  governments  within  the 
county  or  any  part  of  it.  This  resolution  passed  in  the  Senate,  but  did 
not  receive  the  necessary  three-fifths  vote  in  the  House. 

At  the  legislative  session  of  1919,  the  question  was  again  presented, 
and  was  especially  urged  by  the  Civic  League  of  Cleveland  in  connec- 
tion with  the  situation  in  that  city  and  Cuyahoga  County.  A proposed 
county  home  rule  amendment  was  presented,  authorizing  any  county  to 
frame  and  adopt  a charter  for  its  government,  and  with  the  following 

18  Constitution.  Article  XI.  Secs.  6,  7. 

19  City  and  County  Consolidation  for  Los  Angeles.  Report  of  the  Los 
Angeles  Realty  Board  on  the  subject  of  city  and  county  consolidation  (1917). 

20  Centralized  government  for  Alameda  County  and  its  cities  (August,  1916). 
Summary  of  a-  Charter  for  a Federated  City  and  County  Government  for 
Alameda  County  (Sept.  1916). 


976 


provisions  as  to  consolidation : “Any  county  with  a population  of  over 
200,000  may  provide  by  charter  for  the  abolition  of  any  or  all  existing 
governments  within  said  county.  It  may  provide  by  charter,  in  place 
thereof,  a unified  government  over  the  entire  county,  which  charter 
shall  provide  for  the  establishment  of  such  local  districts  or  boroughs 
for  administrative  and  self-governing  purposes,  or  for  assessment  and 
taxation  purposes  or  for  both,  as  it  may  deem  convenient  and  equitable. 
Any  single  government  thus  established  shall  have  the  powers  and 
privileges  granted  to  municipalities  and  counties  under  the  Consti- 
tution”. 

The  question  of  city  and  county  consolidation  is  also  being  seri- 
ously considered  in  Buffalo,  Rochester,  Indianapolis,  Pittsburgh,  Kan- 
sas City,  Portland,  Ore.,  and  Seattle ; and  proposals  for  further  con- 
solidation are  being  discussed  in  New  York  city  and  Philadelphia.  A 
resolution  was  presented  in  the  Oregon  legislature  in  1919  for  a consti- 
tutional amendment  to  consolidate  the  city  of  Portland,  the  county  of 
Multnomah,  and  the  other  municipal  corporations  and  local  districts  in 
the  county,  into  a single  body  politic  and  corporate  by  the  name  of  the 
“City  and  County  of  Portland”.21 


County  Boroughs  in  England.  Local  government  changes  in 
England  during  most  of  the  nineteenth  century  tended  to  develop  a 
confusing  complexity  of  overlapping  districts  and  authorities.  But  dur- 
ing the  last  thirty  years,  important  steps  have  been  taken  in  the  direc- 
tion of  unifying  and  simplifying  the  local  agencies ; and  this  has  been 
most  notable  in  the  case  of  the  larger  cities  (outside  of  London)  which 
have  been  organized  as  county  boroughs. 

The  borough  in  England  is  the  municipal  corporation  correspond- 
ing most  closely  to  the  city  in  the  United  States.  But  in  addition  to  the 
usual  functions  of  American  cities,  the  English  borough  has  also  (since 
1902)  local  control  of  education.  Many  boroughs  also  have  separate 
courts  (justices  of  the  peace,  recorders  and  quarter  sessions),  though 
all  judicial  officers  are  appointed  by  the  central  government.  The 
ordinary  municipal  borough  is,  however,  subject  in  some  respects  to  the 
jurisdiction  of  the  county  council,  and  also  to  that  of  the  central  local 
government  board  (changed  in  1919  to  the  ministry  of  health). 

There  are  19  ancient  cities  or  boroughs  which,  in  addition  to 
separate  courts,  have  for  centuries  had  their  own  sheriffs,  and  have 
thus  been  more  largely  independent  of  the  surrounding  counties. 

County  boroughs  were  created  by  the  local  government  act  of 
1888,  which  established  elected  county  councils.  Most  of  the  ancient 
city-counties,  and  also  most  boroughs  of  over  50,000  population  have 
been  classed  as  county  boroughs, — which  now  number  more  than  70. 
These  county  boroughs  are  almost  entirely  exempt  from  the  juris- 
diction of  the  county  councils ; and  the  borough  government  has  most 
of  the  powers  of  the  county  council  as  well  as  those  of  the  ordinary 
municipal  borough.  It  receives  its  share  of  central  government  grants 


21  Senate  Joint  Resolution  No.  18,  introduced  Feb.  3,  1919. 


977 


directly,  instead  of  through  the  county  council;  it  is  the  local  education 
authority  for  both  elementary  and  high  education;  and  controls  charit- 
able and  other  institutions  usually  managed  by  county  authorities. 

Most  of  the  county  boroughs  do  not  have  their  own  sheriffs.  In 
county  boroughs  where  no  assizes  (nisi  prius  sessions  of  the  supreme 
court  judges  on  circuit)  are  held,  they  must  contribute  to  the  cost  of 
the  county  assizes.  In  some  cases  county  boroughs  unite  with  the  neigh- 
boring county  in  maintaining  insane  hospitals  and  other  institutions 
which  are  managed  by  joint  committees.  Joint  boards  from 
several  local  authorities  are  also  established  for  other  purposes, — such 
as  the  Mersey  dock  and  harbor  authority,  composed  of  representatives 
from  Liverpool  and  a number  of  other  local  bodies.  When  county 
boroughs  are  formed,  financial  adjustments  must  be  made  with  the 
county,  and  these  may  be  revised  every  five  years. 

Special  arrangements  have  been  made  for  London,  whose  local 
government  is  still  complicated  and  in  need  of  further  consolidation. 
The  main  metropolitan  area  (including  parts  of  three  counties)  has 
been  organized  as  an  administrative  county,  with  an  elected  county 
council.  The  London  county  council  has  the  powers  of  other  county 
councils,  and  also  jurisdiction  over  a number  of  important  matters 
usually  given  to  boroughs.  These  include  education,  main  drainage, 
fire  brigade,  parks,  bridges,  main  thoroughfares,  regulation  of  build- 
ings, and  some  licensing  powers. 

There  are  several  other  authorities  having  jurisdiction  over  the 
metropolitan  area  as  a whole.  The  police  are  under  a commissioner 
appointed  by  the  central  government.  Water  supply  is  in  charge  of  a 
metropolitan  water  board,  composed  of  representatives  from  the  local 
authorities.  The  police  district  and  the  water  district  differ  consider- 
ably in  area  from  each  other  and  from  the  administrative  county.  There 
is  also  a metropolitan  asylums  board  and  a port  authority. 

In  addition  to  these,  there  are  a good  number  of  other  local  au- 
thorities over  smaller  districts.  The  ancient  city  of  London  still  re- 
tains a special  position  in  the  heart  of  the  county.  There  are  29  metro- 
politan boroughs,  each  dealing  with  local  matters,  such  as  street 
paving,  lighting,  sanitation,  minor  housing  projects,  baths  and  wash- 
houses, libraries  and  museums.  In  many  matters  the  metropolitan 
boroughs  are  subject  to  control  by  the  county  council.  Outside  of  the 
administrative  county  of  London  are  a number  of  important  urban 
districts  within  the  metropolitan  area.  Finally  there  are  30  poor  law 
unions  within  the  administrative  county.22 


German  City-Circles.  (Kreis-Stadte).  In  Germany,  the  local 
government  of  most  cities  of  over  25,000  population,  and  some  below 
that  figure,  is  combined  with  that  of  the  “circle”,  the  district  corre- 
sponding in  some  respects  to  the  American  county.  In  1910  there  were 
99  such  city-circles  in  Prussia,  detached  from  the  surrounding  circles, 

22  Encyclopedia  of  Local  Government  Law,  I,  565-568;  Harris:  Problems  of 
Local  Government,  217-219;  Odg-ers  and  Maldred:  Local  Government.  96-97; 
Redlich:  Local  Government  in  England,  II.  97-99,  106-108. 


978 


and  in  Bavaria  43  “unmittlebar”  cities  had  a somewhat  similar  ar- 
rangement. 

The  most  important  effect  of  this  arrangement  is  to  free  these 
cities  from  the  supervision  of  the  circle  authorities.  Each  of  these 
cities  has  a committee  of  its  own,  which  exercises  the  supervisory 
functions  vested  in  a circle  committee  for  smaller  places.  These  city- 
circles  are  however  subject  to  the  supervision  of  officials  of  the  larger 
district — the  Bezirk. 

Cities  within  circles  pay  a large  share  of  the  circle  taxation,  for 
which  they  receive  little  direct  return ; while  the  circle  governments 
have  been  controlled  by  the  rural  districts.  When  a city  is  separately 
organized  as  a circle,  financial  adjustments  are  made. 

Berlin  occupies  a special  status.  It  is  excluded  both  from  circle 
and  district  ( Bezirk ) control,  and  for  administrative  purposes  is  de- 
tached from  the  Province  of  Brandenburg.  There  is  however  a police 
commissioner  appointed  for  Berlin,  and  also  a district  committee ; and 
the  chief  president  of  the  Province  of  Brandenburg  has  oversight  over 
the  Berlin  government.23 

In  the  “free  cities”  of  Hamburg,  Bremen  and  Lubeck,  city  and 
state  government  are  combined  in  one  system. 


Swiss  City  Cantons.  Several  of  the  Swiss  Cantons  are  pre- 
dominantly urban  in  character.  Zurich,  with  an  area  of  666  square 
miles,  had  a population  in  1913  of  534,250.  Geneva  had  a population  of 
160,960  in  an  area  of  108  square  miles.  The  canton  of  Basel  City  had 
a population  of  142,870  in  an  area  of  14  square  miles. 

In  these  cases  the  cantonal  governments  are  controlled  by  the 
cities ; and  in  the  canton  of  Basel  City,  municipal  affairs  are  managed 
by  the  cantonal  government,  and  there  is  no  separate  municipal  organi- 
zation for  the  urban  area.  Zurich  and  Geneva  are  divided  into  com- 
munes ; and  there  are  separate  municipal  governments  for  the  urban 
area  and  for  the  rural  communes,  distinct  from  the  government  of  the 
canton. 


Paris  and  the  Department  of  the  Seine.  The  municipal  govern- 
ment of  Paris  and  that  of  the  department  of  the  Seine  are  partially 
combined  and  linked  together.  The  members  of  the  Paris  municipal 
council  are  also  members  of  the  council  general  of  the  department, 
which  includes  also  members  from  the  districts  outside  of  the  city.  The 
prefect  of  the  department  of  the  Seine  is  the  chief  administrative  of- 
ficer both  for  the  department  and  for  the  city,  except  for  matters  under 
the  control  of  the  special  prefect  of  police. 


23  Dawson,  W.  II. : Municipal  Life  and  Government  in  Germany,  465-467. 


979 


For  administrative  purposes,  Paris  is  divided  into  20  arrondisse- 
ments.  These  are  the  districts  for  the  election  of  members  of  the 
municipal  council;  and  in  each  there  is  a municipal  building  (mairie), 
where  are  located  district  offices  for  most  branches  of  local  adminis- 
tration, under  the  general  supervision  of  a district  mayor. 24 

24  A somewhat  different  system  of  19  administrative  districts  exists  in 
Vienna.  See  Albert  Shaw:  Municipal  Government  in  Continental  Europe; 

John  A.  Fairlie:  Essays  in  Municipal  Administration. 


% 


080 


V.  CONCLUSIONS. 


This  pamphlet  has  sought  to  give  in  detail  the  information  that 
may  be  desired  by  the  constitutional  convention  in  dealing  with  the 
local  problems  of  Chicago  and  Cook  County.  The  data  have  been  col- 
lected upon  the  assumption  that  they  should  throw  some  light  upon  the 
issues  involved  in  the  adoption  of  any  one  of  the  various  alternatives 
for  the  solution  of  these  local  problems.  The  several  alternatives  have 
been  stated  and  discussed,  with  the  object  merely  of  presenting  the  is- 
sues which  may  in  one  form  or  another  present  themselves  in  the  de- 
liberations of  the  convention. 

It  is  assumed,  however,  that  the  constitutional  convention,  if  it 
frames  constitutional  provisions  upon  this  matter,  will  deal  only  with 
the  general  issues,  without  seeking  to  place  the  details  of  local  organi- 
zation in  permanent  constitutional  form. 

The  constitution  of  1§70  prescribes  in  detail  the  present  govern- 
mental organization  and  judicial  system  of  Cook  County;  and  detailed 
provisions  framed  for  a county  of  350,000  have  naturally  ceased  to  be 
fully  applicable  to  the  county  after  its  population  has  increased  eight- 
fold. The  Chicago  amendment  to  the  constitution,  adopted  in  1904,  was 
also  detailed  in  character,  and  does  not  permit  the  solution  of  Chica- 
go’s governmental  problems.  If  the  important  and  changing  problems 
of  Chicago  and  Cook  county  are  to  be  satisfactorily  solved,  the  plan 
may  well  be  resorted  to  of  making  it  possible  to  meet  these  problems 
without  serious  constitutional  restrictions. 

The  discussion  in  this  pamphlet  of  the  plans  adopted  in  other 
large  urban  communities  is  of  value  as  indicating  what  has  been  done 
elsewhere  under  somewhat  similar  conditions,  but  emphasis  should  be 
laid  upon  the  fact  that  the  experience  of  one  community  is  not  precisely 
applicable  to  the  problems  of  another.  Cook  County  and  the  City  of 
Chicago  present  problems  of  a type  different  in  many  important  re- 
spects from  those  presented  by  the  city  and  county  situation  in  other 
states,  and  the  constitutional  basis  for  the  settlement  of  these  problems 
must  be  determined  primarily  by  the  facts  of  the  local  situation. 

In  all  discussions  of  proposals  for  consolidated  government,  it 
has  been  assumed  that  no  community  would  be  in  any  way  forced 
to  give  up  its  autonomy  and  become  a part  of  a, larger  consolidated 
city  and  county.  The  discussion  in  this  pamphlet  has  been  based  upon 
this  assumption  and  the  several  alternatives  for  local  organization 
are  discussed,  not  with  the  notion  that  any  one  of  them  will  be  placed 
in  the  constitution,  but  in  order  to  present  the  several  plans  which 
might  be  worked  out  upon  the  basis  of  local  consent,  if  the  consti- 
tution were  so  changed  as  to  make  possible  the  local  solution  of  the 
problems  discussed. 


981 


The  problems  of  Chicago  and  Cook  County  bear  a close  rela- 
tion to  those  of  local  government  elsewhere  in  Illinois.  The  multi- 
plicity and  complexity  of  overlapping  areas  within  Cook  County 
are  here  discussed,  but  in  discussing  the  Cook  County  situation,  it 
should  be  borne  in  mind  that  local  government  in  many  other  parts 
of  the  state  is  almost  as  complex,  if  not  equally  so.  St.  Clair  and 
Rock  Island  counties  have  already  begun  to  present  situations  not  dis- 
similar from  those  here  detailed  with  respect  to  Cook  County. 

A separate  pamphlet  in  this  series  will  be  devoted  to  the  question 
of  local  government  throughout  the  state. 

The  issue  of  municipal  home  rule  will  present  itself  to  the  con- 
vention not  only  with  respect  to  Chicago  but  also  with  respect  to 
th^%ther  cities  of  the  state  as  well,  and  the  issue  as  to  limitations  on 
municipal  indebtedness  will  arise  as  to  both.  The  question  of  muni- 
cipal home  rule  for  Chicago  is  more  important  perhaps,  because  Chi- 
cago is  the  state’s  largest  city,  and  also  because  of  the  fact  that  Chi- 
cago has  a very  large  proportion  of  the  state’s  population. 

The  peculiar  status  of  Chicago  and  Cook  county  raises  other 
problems  not  involved  in  the  grant  of  municipal  home  rule  to  other 
cities.  In  one  respect,  however,  the  problem  is  the  same.  No  plan 
for  municipal  home  rule  for  Chicago  or  for  any  other  city  is  likely  to 
place  cities  in  a position  independent  of  state  authority  as  to  matters 
of  vital  state  concern. 

However,  Chicago  and  Cook  county  present  a distinct  question 
with  respect  to  representation  and  this  question  is  likely  to  be  con- 
nected with  that  of  granting  larger  powers  to  Chicago  and  Cook 
county  to  work  out  their  peculiarly  local  problems.  The  problem 
of  representation  has  a twofold  aspect.  The  proposal  to  limit  the  rep- 
resentation of  Cook  county  and  Chicago  will  be  made  for  the  pur- 
pose of  preventing  Chicago  and  Cook  county  from  dominating  the  rest 
of  the  state.  But  it  is  probably  not  desired  by  anyone  that  the  rest 
of  the  state  should  control  the  local  problems  of  Chicago  and  Cook 
county.  If  Cook  county  and  Chicago  have  limited  representation  in 
either  or  both  houses,  but  continue  under  the  necessity  of  getting  per- 
mission from  the  general  assembly  to  deal  with  every  new  aspect 
of  a purely  local  problem,  they  are  helpless,  for  legislative  inaction 
denies  them  the  things  they  need.  If  Chicago  is  governed  largely 
from  Springfield,  reducing  the  representation  of  Chicago  at  Springfield 
is  reducing  the  power  of  the  city  to  govern  itself.  A discussion  of 
the  problem  of  representation  will  be  found  in  a pamphlet  on  the 
Legislative  Department,  and  a separate  pamphlet  in  this  series  is 
devoted  to  the  subject  of  municipal  home  rule. 

In  a pamphlet  devoted  to  the  judicial  department,  an  analysis 
of  the  present  judicial  system  of  Cook  county  and  Chicago  will  be 
found.  It  may  be  worth  while  to  suggest  here,  however,  that  the 
present  judicial  organization  within  Cook  county  confines  its  atten- 
tion primarily  to  the  questions  presented  by  the  city  itself  and  some- 
what neglects  the  civil  and  criminal  matters  arising  in  parts  of  the 
county  outside  of  Chicago. 


APPENDIX  NO.  1.  REFERENCES. 


Constitutional  Changes  required  in  Cook  County,  by  H.  S.  Mecartney 
and  Enoch  J.  Price  (1900-01). 

The  Extent  of  Necessary  Constitutional  Amendment,  by  Wallace 
Heckman.  Address  to  Chicago  Law  Club,  March  29,  1901. 

Chicago  and  the  Constitution.  Report  of  Civic  Federation  Committee. 
September,  1902. 

Proceedings  of  the  Chicago  New  Charter  Convention. 

The  Proposed  Amendment  to  the  Constitution  of  the  State  of  Illinois 
and  a new  charter  for  Chicago,  by  B.  E.  Sunny,  April,  1904. 

The  Chicago  New  Charter  Movement,  July,  1904. 

Opinion  on  the  Amendment  to  Article  IV  of  the  Constitution  of 
Illinois.  By  E.  B.  Tolman  (Corporation  Counsel  of  Chicago)  De- 
cember 1,  1904. 

The  New  Amendment  of  the  Constitution  of  Illinois  covering  the 
charter  of  Chicago.  By  Henry  Schofield,  Northwestern  University 
Bulletin  of  the  College  of  Law  No.  11,  February,  April,  1905. 

The  Chicago  Charter  Convention.  By  Charles  E.  Merriam.  American 
Political  Science  Review,  II,  (November,  1907). 

Some  Legal  Aspects  of  the  Chicago  Charter  Act  of  1907.  By  Ernst 
Freund.  Illinois  Law  Review,  II,  427  (February,  1908). 

The  Park  Governments  of  Chicago,  Chicago  Bureau  of  Public  Ef- 
ficiency, December,  1914. 

The  Nineteen  Local  Governments  in  Chicago,  Chicago  Bureau  of 
Public  Efficiency.  December,  1913,  Second  Ed.,  March,  1915. 

Unification  of  Local  Governments  in  Chicago,  Chicago  Bureau  of 
Public  Efficiency.  January,  1917. 

Tentative  Propositions  affecting  the  City  of  Chicago.  Special  Council 
Committee  on  Constitutional  Proposals.  December  1,  1919. 


983 


APPENDIX  NO.  2.  TABLES. 


Table  1. — Assessed  Valuations — ipi8 — City  of  Chicago,  Sanitary 

District,  and  Cook  County. 

City  of  Chicago $1,082,763,780 

Sanitary  District  of  Chicago 1,145,619,326 

Cook  County  outside  Chicago 87,311,363 

Cook  County  outside  Sanitary  District 24,455,017 

Entire  County 1,170,075,143 

Table  2. — Assessed  Valuation — ipi8 — City  of  Chicago. 

Calumet  $ 8,594,900 

Hyde  Park  131,235,241 

Jefferson  45,978,238 

Lake  85,688,446 

Lake  View 82,077,254 

\Maine  231,368 

Niles  27,395 

North  Chicago 69,752,304 

Norwood  Park 381,355 

Rogers  Park 10,746,091 

South  Chicago  413,731,634 

Stickney 771,010 

West  Chicago 233,244,978 

Worth  303,466 


$1,082,763,780 


984 


Table  3. — Assessed  Valuation — 1918 — Sanitary  District  of  Chicago. 


Berwyn  

Bremen  

Calumet 

Cicero  

Evanston  .... 
Hyde  Park  . . . 
Jefferson  .... 

Lake 

Lake  View  ... 

Leyden  

Lyons  

Maine  

New  Trier  . . . 

Niles 

North  Chicago 
Northfield  . . . 
Norwood  Park 
Oak  Park  .... 

Proviso  

Rogers  Park  . . 
River  Forest  . . 

Riverside 

South  Chicago 

Stickney  

Thornton 

West  Chicago  . 
Worth  


$ 2,352,628 
355.941 
9,868,884' 
6,351,620 
14,011,221 
131,235,241 
45,978,238 
85,688,446 
82,077,254 
726,242 
1,620,828 
298,579 
6,933,148 
1,468.474 
69,752,304 
565,305 
686,931 

9.401.427 
5,051,725 

10,746,091 

1,137,754 

1,696,617 

413,731,634 

2,930,592 

5.551.427 
233,244,978 

2,155,797 


$1,145,619,326 


985 


Table  4. — Assessed  Valuations — 1918 — Cook  County  Outside  the  City 

of  Chicago. 


Barrington  $ 1,089,814 

Berwyn 2,352,628 

Bloom  3,999,645 

Bremen  1,044,792 

Cicero  6,351,620 

Elk  Grove 624,490 

Evanston  14,011,221 

Hanover  944,623 

Lemont  761,955 

Leyden  2,238,343 

Lyons  5,348,341 

New  Trier 6,933,148 

Northfield  890,377 

Oak  Park 9,401,427 

Orland  561,990 

Palatine  1,042,408 

Palos  563,532 

Proviso  6,261,021 

Rich  1,055,151 

River  Forest 1,137,754 

. Riverside 1,696,617 

Schaumburg  561,646 

Thornton  7,384,751 

Wheeling 1,058,521 

Calumet  * 1,273,984 

Maine  * 1,794,722 

Niles  * 1,441,079 

Norwood  Park  * 416,493 

Stickney  * 2,159,582 

Worth*  2,909,688 


Total  $87,311,363 


* These  townships  are  partly  country  and  partly  city  townships.  The 
valuations  are  on  those  parts  outside  the  city  limit. 


986 


Table  5. — Assessed  Valuation — 1918 — Cook  County  Outside  the  Sani- 
tary District. 


Barrington  . . . 

Bloom  

Bremen 

Elk  Grove  . . . 

Hanover  

Lemont  

Leyden  

Lyons  

Maine  

Northfield 
Norwood  Park 

Orland  

Palatine  

Palos 

Proviso 

Rich  

Schaumburg  . . 

Thornton 

Wheeling 

Worth  


$1,089,814 

3,999,645 

688,851 

624,490 

944,623 

761,955 

1,512,101 

3,727,513 

1,727,511 

325,072 

110,917 

561,990 

1,042,408 

563,532 

1,209,296 

1,055,151 

561,646 

1,833,424 

1,058,521 

1,057,357 


$24,455,817 


987 


Table  6. — Summary  of  Taxes  Extended — 1918 — within  Cook  County. 


Purposes. 

Within  the 
Entire 
County. 

Within  the 
Limits  of  the 
Sanitary 
District. 

Within  the 
City  of 
Chicago. 

Outside  the 
City  of 
Chicago. 

State  

$ 8,779,012.40 
7,023,289.24 
589,516.70 
22,684,655.97 

21,132,709.17 

6,041,444.34 

4,585,114.44 

705,828.54 

470,408.92 

$ 8,595,344.94 
6,876,415.95 
563,011.84 
22,541,516.44 

20,331,141.32 

6,027,473.42 

4,585,114.44 

690,871,59 

58,963.23 

$ 8,123,151.37 
6,498,499.68 
201,748.71 
21,441,393.10 

17,652,031.62 

5,913,476.19 

4,333,040.91 

652,210.75 

48.00 

$ 655,861.03 
524,789.56 
387,767.99 
1,243,262.87 

3,480,677.55 

127,968.15 

252,073.53 

53,617.79 

470,360.92 

Cook  County 

Townships  

Cities  and  Villages 

School  and  High  School 
Districts  

Park  Districts  

Sanitary  District 

Forest  Preserve  District 
Other  

Total  

$72,011,979.72 

$70,269,853.17 

$64,815,600.33 

$7,196,379.39 

Table  7. — Relation  Between  Taxes  Extended  Within  Cook  County — 
1918 — and  Those  Extended  Within  the  Sanitary  District  and  the 
City  of  Chicago. 


Purposes. 

Percentage 

Extended 

Within 

Cook 

County. 

Percentage 
Extended 
Within  the 
Sanitary 
District. 

Percentage 
Extended 
Within  the 
City  of 
Chicago. 

Percentage 
Extended 
Outside  the 
City  of 
Chicago. 

State  

100 

97.9 

92.5 

7.5 

County  

Townships  

Cities  and  Villages 

School  and  High  School  Dis- 
tricts   

Park  Districts  

Sanitary  Districts  

Forest  Preserve  District.  . . . 
Other  


100 

100 

100 

100 

100 

100 

100 

100 


100 


97.9 

95.5 
99.3 

96.2 

99.7 
100. 

97.8 

12.5 


97.58 


92.5 
34.2 

94.5 

83.5 
97.8 

94.5 
92.4 


90.00 


7.5 
65.8 

5.5 

16.5 

2.2 

5.5 

7.6 
100. 


Total 


10. 


988 


Table  8. — Taxes  Extended 


Chicago — Towns. 

State. 

County. 

City  and 
Village. 

Schools. 

North  Chicago 

$ 523,216.99 

$ 418,576.99 

$1,381,177.78 

$1,137,053.37 

Lake  View 

615,764.93 

492,607.19 

1,625,324.00 

1,338,077.70 

Rogers  Park 

80,634,06 

64,506.96 

212,815.75 

175,209.58 

Jefferson 

345,161.87 

276,118.19 

910,727.66 

749,854.21 

Hyde  Park 

984,671.67 

787,728.23 

2,598,883.37 

2,139,622.88 

Lake 

643,090.79 

514,458.05 

1,697,113.07 

1,397,272.70 

South  Chicago 

3,103,184.99 

2,482,553.53 

8,192,097,35 

6,744,069.75 

West  Chicago 

1,749, 866. 3f> 

1,399,916.71 

4,618,850.15 

3,802,555.29 

Calumet 

64,573.72 

51,701.28 

170,374.52 

140,291.51 

Maine 

1,777.14 

1,390.55 

4,587.65 

3, '779, 24 

Niles. . 

246.41 

164.52 

545.20 

447.82 

Norwood  Park 

2,785.88 

2,302.91 

7,567.51 

6,235.64 

Stickney 

5,833.25 

4,649.63 

15,313.64 

12, 607. Of 

Worth 

2,343.31 

1,824.94 

6,015.45 

4,954.79 

Totals — C i t y of  Chi- 

cago   

$8,123,151.37 

$6,498,499.68 

$21,441,393.10 

$17,652,031.62 

Totals  for  Entire 
Townships  Being  Partly 
Outside  Chicago. 

Calumet 

$74,203.72 

$59,360.98 

$188,287.56 

$189,249.67 

Maine 

15,237.14 

12,196.83 

33,553,09 

100,474.77 

Niles 

11,026.41 

8,818.06 

7,503.19 

20,276.01 

Norwood  Park 

6,015.88 

4,809.64 

7,567.51 

15,084.67 

Stickney 

22,033.25 

17,618.28 

18,046.24 

49,249.96 

Worth 

24,166.77 

19,348.52 

34,733.48 

102,855.39 

a Forest  preserve  district. 


989 


igi8 — Chicago  by  Towns. 


Park  Districts. 

Sanitary 

District. 

Town. 

Others. 

Total. 

$ 453,547.10 

$ 279,073.12 

$97,734.11 

$ 41,931.32* 

$ 4,332,310.78 

558,493.69 

328,458.76 

90,508.80 

49,429.49a 

5,098,664.56 

44,804.53 

43,017.96 

6,489.41“ 

627,478.25 

197,580.89 

184,170.03 

27,935.23a 

2,691,548.08 

564,793.26 

525,270.61 

79,150.45“ 

7,680,120.47 

368,986.53 

343,096.03 

51,856.44a 

5,015,873.70 

1,779,282.97 

1.655,092.54 

248,450.18a 

24,204,731.31 

1,913,197.57 

93,430.25 

140,534.60a 

14,558,350.93 

29,962.15 

34,483.45 

10,440.70 

5,191.91 

507,019.24 

1,366.92 

959.87 

386.97 

224.85 

14,473.19 

125.23 

78.16 

66.82 

1,674.16 

1,542.33 

744.18 

246.82 

21,425.27 

3,100.52 

1,478.87 

529.95 

43,512.91 

1,460.58 

1,220.21 

376.92 

221.28 

18,417.48 

$5,913,476.19 

$4,333,040.91 

$201,748.71 

$652,258,75 

\ 

$64,815,600.33 

$34,645.58 

$39,629.17 

$11,994.70 

$13,978.02 

$611,349.40 

3,448.02 

1,199.87 

3,296.97 

34,454.85 

203,861.56 

5,880.23 

3,243.16 

25,316.82 

82,063.88 

2,772.33 

1,554.18 

4,036.82 

41,841.03 

11,757.52 

5,622.87 

15,099.95 

139,428.07 

6,091.30 

8,670.21 

3,933.08 

19,571.28 

219,370.03 

990 


Table  9. — Taxes  Extended  1918 — * 


State. 

County. 

City  and 
Village. 

Schools. 

$ 8,179.98 

$ 6,543.03 

$ 4,094.48 

$ 16,931.61 

17,685.97 

14,154.13 

45,924,35 

125,861.29 

30,063.90 

24,066.41 

57,951.91 

156,061.09 

7,865.84 

6,289.97 

2,934.85 

11,606.99 

47,700.41 

38,158.98 

See  Town  Tax 

320,158.26 

4,688.09 

3,750.87 

925.32 

9,736.96 

7,091.17 

5,673.91 

2,594.30 

10,969.92 

5,722.69 

4,578.53 

5,066.10 

23,287.11 

16,839.27 

13,477.58 

14,041.58 

42,426.01 

40,178.68 

32,162.08 

60,266.99 

197,091.80 

52,058.70 

41,647.94 

126,655.42 

365,639.79 

6,685.94 

5,350.20 

3,283.23 

22,032.40 

70,594.36 

56,467.96 

232,391.77 

484,263.02 

4.218.27 

3,378.73 

1,065.08 

10,778.14 

7,825.13 

6,263.31 

5,870.31 

21,722.52 

4,233.87 

3,388.15 

1,466.22 

7,828.13 

47,064.66 

37,673.36 

102,897.02 

289,135.94 

7,919.28 

6,335.68 

1,821.94 

8,740.97 

8,543.55 

' 6,837.14 

18,214.76 

58.605.40 

105,145.58 

84,120.57 

344,736.93 

599,051.38 

12,743.53 

10,193.64 

28,917.10 

85,575.03 

4,214.99 

3,372.45 

3,935.86 

55,522.67 

44,421.93 

91,783.47 

271,205.84 

7,951.04 

6,364.53 

5,072.64 

29,157.67 

$580,737.57 

$464,671.08 

$1,157,975.77 

$3,171,803.13 

$ 9,630.00 

$ 7,659.70 

$17,913.04 

$48,958.16 

13,460.00 

10,806.28 

28,965.44 

96,695.53 

10,780.00 

8,653.54 

6,957.99 

19,828.19 

3,230.00 

2,506.73 

8,849.03 

16,200.00 

12,968.65 

2,732.60 

36,642.91 

21,823.46 

17,523.58 

28,718.03 

97,900.60 

$75,123.46 

$60,118.48 

$85,287.10 

$308,874.42 

$655,861.03 

$524,789.56 

$1,243,262.87 

$3,480,677.55 

$8,123,151.37 

$6,498,499.68 

$21,441,393.10 

$17,652,031.62 

$8,779,012.40 

$7,023,289.24 

$22,684,655.97 

| $21,132,709.17 

Barring-ton 

Berwyn 

Bloom 

Bremen 

Cicero 

Elk  Grove 

Hanover 

Lemont 

Leyden 

Lyons 

New  Trier 

Northfield 

Oak  Park 

Orland 

Palatine 

Palos 

Proviso 

Rich 

River  Forest 

City  of  Evanston. 

Riverside 

Schaumburg- 

Thornton 

Wheeling 


Total-towns  wholly 
outside  Chicago 


(Taxes  Extended  on 
Parts  of  City  Towns 
outside  Chicago). 

Calumet 

Maine 

Niles 

Norwood  Park 

Stickney 

Worth 


.Total-Towns  Partly 
outside  Chicago.  . . . 

Total — Outside  Chicago . 

City  of  Chicago 

Grand  Total  for  County 


991 


Country  Towns  of  Cook  County. 


Park  District. 

Sanitary 

District. 

Town. 

Other. 

Total. 

$ 1,094.87 

$ 9,338.24 
1.478.11 

78.130.53 
19,948.17 

3,868.70 

12,835.31 

6,627.43 

5,400.88 

17,434.03 

36,211.47 

26,733.37 

16,975.21 

7,847.77 

5,092.23 

12.317.41 
9,686.29 

43.333.42 
18,154.84 

843.23 

8,807.92 

3,772.17 

3,995.79 

58.024.53 
11,135.55 

$ 46,182.21 

214,553.60 
355,540.81 
52,187.58 

734.856.80 
33,189.67 
33,626.77 

52.444.87 
111,025.77 
378,357.93 
694,154.33 

59,011.16 

930.680.80 
25,666.44 
54,527.84 
28,244.71 

553,734.40 

44.561.88 
105,013.99 

1,209,341.68 

151,584.37 

16,027.36 

558,661.91 

61,810.81 

$ 9,449.75 

9,266.97 

2,111.91 

297,314.07 

1,253.12 

670.04 

8,389.56 

3,877.61 

5,947.01 

$ 2,195.68 

i, 429. 85 
25,450.70 

53,638.09 

41,441.11 

2,929.69 

6,499.90 

27,781.02 

2,267.92 

37,674.81 

2,416.26 

1,133.99 

529.16 

1,642.05 

13,286.13 

1,589.17 

20,343,87 

7,408.20 

11,386.81 

4,561.71 

56,092.49 

6,801.76 

3,581.14 

508.27 

14,888.12 

2,129.38 

503.01 

22,312.34 

$116,572.90 

$223,595.81 

$371,628.83 

$418,002.60 

$6,504,987.69 

$4,683.43 

2,081.10 

$5,145.72 

240.00 

5.755.00 

1.230.00 

8.657.00 

7.450.00 

$1,554.00 

2.910.00 

3.165.00 
810.00 

4.144.00 
3,556.16 

$ 8,786.11 

34.230.00 

25.250.00 
3,790.00 

14.570.00 

19.350.00 

$104,330.16 

189,388.35 

80,389.72 

20,415.76 

95,915.16 

200,952.55 

4,630.72 

$11,395.25 

$28,477.72 

$16,139.16 

$105,976.11 

$691,391.70 

$127,968.15 

$252,073.53 

$387,767.99 

$523,978.71 

$7,196,379.39 

$5,913,476.19 

$4,333,040.91 

$201,748.71 

$652,258.75 

$64,815,600.33 

$6,041,444.34 

$4,585,114.44 

$589,516.70 

$1,176,237.46 

$72,011,979.72 

992 


Table  10. — Tax  Rates  ipi8. 


City  of  Chicago  and  Certain  Other  Cities  and  Villages  in  Cook 

County. 


State,  County,  Forest 
Preserve,  Sanitary 
District. 

Town  and  Road. 

City  or  Village. 

Park. 

Berwyn 

$1  81 

Si  95 

Blue  Island  . . . 

1 81 

$0  73 

1 90 

SO  55 

Chicago 

Heights 

1 41 

2 08 

2 19 

Cicero  

1 81 

4 68 

33 

Evanston 

1 81 

2 46 

SO  26  or  55 

Harvey 

1 81 

90 

2 10 

Oak  Park 

1 81 

2 47 

44 

River  Forest. . 

1 81 

1 60 

65 

Riverside 

1 81 

37 

1 90 

Wilmette 

1 81 

32 

2 00 

85 

Winnetka 

1 81 

32 

1 65 

75 

City  of  Chicago 

Towns 

N.  Chicago 

1 81 

14 

1 98 

65 

S.  Chicago. 

1 81 

1 98 

43 

W.  Chicago 

1 81 

1 98 

82 

Hyde  Park 

1 81 

1 98 

43 

Jefferson.. 

1 81 

1 98 

28  - 57 

Lake 

1 81 

1 98 

43 

Lake  View 

1 81 

”*ii' 

1 98 

68 

Brookfield 

1 81 

81 

2 52 

Desplaines 

1 41 

1 97 

3 20 

Park  Ridge  . . . 

1 41 

1 97 

2 45 

40 

Maywood 

1 81 

81 

2 05 

School. 

High  School. 

School  Bond. 

Total. 

S3  00 

$1  95 

$0  30  or  SO  58 

$9  29 

2 80 

2 80 

10  59 

3 00 

1 28 

25 

10  21 

3 00 

1 95 

30  or  58 

12  35 

18  or2  35 

2 05 

$8  76  or  9 22 

3 00 

1 90 

9 71 

3 00 

2 15 

9 87 

3 00 

2 15 

9 21 

2 10 

3 00 

9 18 

3 00 

2 40 

10  38 

3 00 

2 40 

9 93 

1 63 

6 21 

1 63 

5 89 

l 63 

6 24 

1 63 

5 85 

1 63 

5 70  - 5 99 

1 63 

5 85 

1 63 

6 21 

3 00 

3 00 

11  14 

3 00 

2 70 

12  28 

3 00 

2 70 

11  93 

3 00 

1 90 

9 57 

Table  11. — Assessed  Valuations  and  Taxes  Extended — ipi8 — Coun- 
ties Adjacent  to  Cook  County. 


Du  Page 
County. 

Lake  County. 

Will 

County. 

Assessed  Valuation 

$17,263,612.00 

$25,504,516.00 

$35,123,745.00 

Taxes  Extended 

State.  

$129,617.58 

105,518.33 

25,391.79 

125,745.90 

133,643.08 

431,000.02 

3,618.01 

3,477.00 

$191,495.63 

234,857.24 

19,918.85 

136,804.06 

321,466.45 

702,991.60 

36,947.62 

98,521.50 

$ 263,523.88 
263,523.88 
85,272.06 
290,302.47 
326,116.34 
1,173,519.40 

6.354.00 

County  

Town  

Road  and  Bridge 

City  and  Village  

School  

Park  and  Forest  Preserve .... 
Other  

Total  

$958,011.71 

$1,743,002.95 

$2,408,612.03 

993 


Table  12. — Bonded  Indebtedness  of  Local  Governments  in  Chicago * 
As  of  December  ji,  1919. 


Total  Bonds 
Authorized. 

Bonds 

Outstanding. 

Bonds 
Authorized 
but  Unissued. 

Cook  County  

Forest  Preserve  District 

Sanitary  District  

City  of  Chicago 

South  Park  District 

West  Chicago  Park  District 

Lincoln  Park  District 

Small  Park  Districts  (a) 

Total  of  all  Local  Govern- 
ments   

$15,157,500 

6.760.000 
13,678,000 
81,910,700 

4.031.000 

3.156.000 

2.406.000 

1.200.000 

$ 9,157,500 

6.474.000 
13,580,000 
45,695,500 

4.031.000 

3.156.000 

2.406.000 

1.200.000 

$ 6,000,000 
286,000 
98,000 
36,215,200 

$128,299,200 

$85,700,000 

$42,599,200 

a In  1915  the  bonded  indebtedness  of  the  small  park  districts,  according 
to  a statement  of  the  Chicago  Bureau  of  Public  Efficiency  in  “Unification  of 
Local  Governments”  (1917),  amounted  to  $953,000.  The  records  of  the  county 
clerks’  office  show  that  since  1915  bonds  in  the  amount  of  $359,000  have 
been  issued  by  the  various  small  park  districts.  Owing  to  the  difficulty  of 
obtaining  exact  information  from  the  fourteen  small  park  governments,  the 
amount  of  bonds  actually  outstanding  at  the  close  of  1919  has  been  estimated, 
with  the  above  named  figures  as  a basis. 

* Several  of  these  governments  extend  outside  the  limits  of  Chicago,  but 
they  would  all  be  involved  in  a consolidated  government. 


994 


APPENDIX  No.  3— CONSTITUTION  OF  ILLINOIS,  AR- 
TICLE IV,  SECTION  34. 


Section  34.  The  General  Assembly  shall  have  power,  subject  to 
the  conditions  and  limitations  hereinafter  contained,  to  pass  any  law 
(local,  special  or  general)  providing  a scheme  or  charter  of  local 
municipal  government  for  the  territory  now  or  hereafter  embraced 
within  the  limits  of  the  city  of  Chicago.  The  law  or  laws  so  passed 
may  provide  for  consolidating  (in  whole  or  in  part)  in  the  municipal 
government  of  the  city  of  Chicago,  the  powers  now  vested  in  the  city, 
board  of  education,  township,  park  and  other  local  governments  and 
authorities  having  jurisdiction  confined  to  or  within  said  territory, 
or  any  part  thereof,  and  for  the  assumption  by  the  city  of  Chicago 
of  the  debts  and  liabilities  (in  whole  or  in  part)  of  the  governments 
or  corporate  authorities  whose  functions  within  its  territory  shall  be 
vested  in  said  city  of  Chicago,  and  may  authorize  said  city,  in  the 
event  of  its  becoming  liable  for  the  indebtedness  of  two  or  more  of 
the  existing  municipal  corporations  lying  wholly  within  said  city  of 
Chicago,  to  become  indebted  to  an  amount  (including  its  existing  in- 
debtedness and  the  indebtedness  of  all  municipal  corporations  lying 
wholly  within  the  limits  of  said  city,  and  said  city’s  proportionate  share 
of  the  indebtedness  of  said  county  and  sanitary  district  which  share 
shall  be  determined  in  such  manner  as  the  General  Assembly  shall 
prescribe)  in  the  aggregate  not  exceeding  five  per  centum  of  the  full 
value  of  the  taxable  property  within  its  limits,  as  ascertained  by  the  last 
assessment  ei  :her  for  State  or  municipal  purposes  previous  to  the  in- 
curring of  such  indebtedness  (but  no  new  bonded  indebtedness,  other 
than  for  refunding  purposes,  shall  be  incurred  until  the  proposition 
therefore  shall  be  consented  to  by  a majority  of  the  legal  voters  of 
said  city  voting  on  the  question  at  any  election,  general,  municipal  or 
special)  ; and  may  provide  for  the  assessment  of  property  and  the 
levy  and  collection  of  taxes  within  said  city  for  corporate  purposes  in 
accordance  with  the  principles  of  equality  and  uniformity  prescribed 
by  this  Constitution;  and  may  abolish  all  offices,  the  functions  of 
which  shall  be  otherwise  provided  for ; and  may  provide  for  the  an- 
nexation of  territory  to  or  disconnection  of  territory  from  said  city 
of  Chicago  by  the  consent  of  a majority  of  the  legal  voters  (voting 
on  the  question  at  any  election,  general  municipal  or  special)  of  the 
said  city  and  of  a majority  of  the  voters  of  such  territory,  voting  on 
the  question  at  any  election,  general,  municipal  or  special ; and  in  case 
the  General  Assembly  shall  create  municipal  courts  in  the  city  of 
Chicago  it  may  abolish  the  offices  of  justices  of  the  peace;  police 


995 


magistrates  and  constables  in  and  for  the  territory  within  said  city, 
and  may  limit  the  jurisdiction  of  justices  of  the  peace  in  the  territory 
of  said  county  of  Cook  outside  of  said  city  to  that  territory,  and  in 
such  case  the  jurisdiction  and  practice  of  said  municipal  courts  shall 
be  such  as  the  General  Assembly  shall  prescribe ; and  the  General  As- 
sembly may  pass  all  laws  which  it  may  deem  requisite  to  effectually 
provide  a complete  system  of  local  municipal  government  in  and  for 
the  city  of  Chicago. 

No  law  based  upon  this  amendment  to  the  Constitution,  affecting 
the  municipal  government  of  the  city  of  Chicago,  shall  take  effect 
until  such  law  shall  be  consented  to  by  a majority  of  the  legal  voters 
of  said  city  voting  on  the  question  at  any  election,  general,  municipal 
or  special ; and  no  local  or  special  law  based  upon  this  amendment 
affecting  specially  any  part  of  the  city  of  Chicago  shall  take  effect 
until  consented  to  by  a majority  of  the  legal  voters  of  such  part  of 
said  city  voting  on  the  question  at  any  election,  general,  municipal 
or  special.  Nothing  in  this  section  contained  shall  be  construed  to 
repeal,  amend  or  affect  section  four  (4)  of  Article  XI  of  the  Consti- 
tution of  this  state. 


996 


APPENDIX  NO.  4— PROPOSAL  OF  THE  CHICAGO  CITY 

COUNCIL. 


1.  Subject  to  the  provisions  of  the  constitution,  to  laws  now  ex- 
isting and  to  future  general  laws,  the  City  of  Chicago  shall  have  powers 
of  local  government  and  of  corporate  action  adequate  for  all  municipal 
purposes.  This  grant  of  powers  shall  be  liberally  construed  and  no 
power  shall  be  presumed  to  be  denied  by  reason  of  not  being  specified 
in  any  existing  or  future  law. 

2.  Laws  of  the  state  relating  to  the  organization  of  the  City  of 
Chicago  and  to  the  mode  of  exercising  its  powers  may  be  superseded 
in  their  application  to  the  City  by  or  under  a charter  framed  by  an 
elective  convention  called  as  provided  by  city  ordinance  and  adopted 
by  the  voters  of  the  city  as  provided  by  the  convention,  or  by  or  under 
amendments  of  said  charter  adopted  as  provided  by  said  charter. 
The  question  whether  a convention  shall  be  called  or  not  shall  be  sub- 
mitted to  be  voted  on  separately. 

3.  The  following  shall  be  deemed  to  be  laws  or  ordinances  re- 
lating to  organization  and  to  the  mode  of  exercising  powers : 

First — Those  which  determine,  create  and  organize  the  offices 
by  which  powers  conferred  or  obligations  imposed  upon  the  city  or 
upon  any  of  its  departments  or  agencies  shall  be  exercised  or  per- 
formed, as  well  as  the  subdivision  of  the  city  for  municipal  purposes. 

Second — Those  which  determine  the  methods  by  which  such 
offices  and  all  places  in  the  municipal  service  shall  be  filled  or  vacated, 
and  the  compensation  paid  to  officers  and  employes,  which  compen- 
sation, as  well  as  the  conditions  of  appointment  and  promotion  of  cleri- 
cal or  technical  employes  shall  be  determined  according  to  a general 
plan. 

Third — Those  which  determine  the  relations  between  offices  and 
officers ; but  the  relations  between  city  officers  and  officers  of  the  state, 
or  of  any  of  its  subdivisions,  and  all  provisions  for  supervision  and 
control  by  the  state  or  state  officials  of  the  exercise  of  the  city’s 
powers  shall  be  determined  by  state  law. 

Fourth — Those  which  determine  the  procedure  to  be  observed  by 
city  officials  in  exercising  their  powers,  but  so  far  as  such  procedure 
affects  private  rights,  it  shall  be  subject  to  state  law. 

Fifth — Those  which  determine  which  of  the  powers  conferred 
upon  the  city  shall  be  exercised  by  the  people  of  the  city  directly,  and 
the  method  of  direct  popular  action. 

4.  Charter  provisions  and  ordinances  which  in  accordance  with 
the  foregoing  provisions  supersede  state  laws  in  their  application  to 
the  city,  shall  be  general  in  character  and  shall  not  be  altered  by  state 
legislation. 


997 


5.  The  following  shall  not  be  deemed  to  be  ordinances  relating 
to  the  organization  of  the  city  or  the  mode  of  exercising  its  powers 
so  as  to  supersede  the  application  of  state  laws : 

First — Those  which  determine  the  extent  of  the  powers  pos- 
sessed, or  to  be  exercised,  by  the  city. 

Second — Those  which  relate  to  the  property  rights  and  obliga- 
tions of  the  city. 

Third — Those  which  determine  or  impose  penalties. 

6.  The  administration  of  justice  by  the  courts  shall  not  be  deemed 
to  be  a matter  of  local  government,  but  the  general  assembly  may  dele- 
gate to  the  city,  powers  connected  with  the  administration  of  justice. 

7.  The  city  shall  have  power  to  condemn  private  property  (in- 
cluding public  utilities  and  the  privileges  or  licenses  held  in  connection 
therewith)  for  public  use  in  accordance  with  law.  The  power  to  con- 
demn property  lying  outside  of  the  city  limits  shall  be  determined  by 
law. 

8.  The  power  of  the  city  to  own,  acquire,  construct,  operate,  or  let 
or  lease  for  operation  public  utilities  shall  not  be  denied  by  law. 

The  city  shall  have  exclusive  power,  either  by  the  exercise  of  its 
legislative  authority  or  by  contract,  to  regulate  the  rates  to  be  charged 
and  the  services  to  be  rendered  by  persons  or  corporations  supplying 
transportation,  communication,  light,  heat,  power  or  other  public 
utilities  to  the  people  of  the  city  and  enjoying  special  street  privileges 
for  that  purpose. 

Any  contract  made  concerning  rates  or  services  shall  for  the  term 
for  which  it  is  made,  which  shall  not  exceed  ten  years,  be  inviolable. 

No  law  shall  be  passed  by  the  General  Assembly  granting  the 
right  to  construct  and  operate  a public  utility  requiring  the  occupation 
of  city  streets  by  permanent  fixtures,  without  requiring  the  consent  of 
the  city. 

9.  No  state  law  shall  be  regarded  as  general  which  by  reason  of 
the  conditions  of  its  application  is  operative  only  in  the  City  of  Chi- 
cago. 

10.  No  law  shall  be  questioned  by  reason  of  not  being  general  if 
the  City  Council  by  resolution  shall  accept  the  same. 

11.  The  charter  framed  by  an  elective  convention  as  above  pro- 
vided may  provide  for  the  consolidation  with  the  city  of  the  municipal 
corporations  other  than  the  County  of  Cook,  now  exercising  taxing 
powers  in  any  part  of  the  City  of  Chicago,  or  any  of  them,  but  no 
taxing  power  shall  be  exercised  under  any  such  consolidation  over 
that  part  of  any  such  municipal  corporation  lying  outside  of  the  city 
unless  such  consolidation  shall  have  been  agreed  to  by  the  people  in- 
habiting said  part,  voting  as  provided  by  law. 

12.  Limitations  and  requirements  of  the  constitution  relating  to 
legislation  concerning  county  organization,  county  officers  or  county 
affairs  shall  not  bind  legislation  regulating  relations  between  the 
County  of  Cook  and  the  City  of  Chicago,  or  transferring  functions 
performed  by  the  County  of  Cook  for  the  people  of  Chicago  in  whole 
or  in  part  to  the  City  of  Chicago,  or  creating  the  City  of  Chicago  into 
a separate  county. 


998 


13.  (1)  The  General  Assembly  may  vest  the  corporate  authori- 
ties of  the  City  of  Chicago  with  power  to  make  local  improvements 
by  special  assessments  or  by  special  taxation  of  contiguous  property 
or  otherwise. 

(2)  The  General  Assembly  shall  not  limit  the  annual  general  tax 
on  real  or  personal  property  by  reference  to  the  rate  of  taxation  im- 
posed by  other  authorities  exercising  powers  of  taxation  over  property 
in  the  City  of  Chicago,  and  any  such  limit  now  existing  shall  become  in- 
operative. 

(3)  The  City  of  Chicago  may  fix  the  limit  of  the  annual  tax 
rate  on  real  or  personal  property  in  excess  of  the  limit  prescribed  by 
law  with  the  approval  of  the  governor  to  be  given  or  withheld  only 
upon  taking  into  consideration  the  recommendation  of  the  state  tax 
commission  (or  other  authority  performing  the  functions  of  the  state 
tax  commission)  such  recommendation  to  be  made  only  after  a 
public  hearing  and  by  a written  opinion. 

(4)  The  excess  maximum  rate  of  taxation  thus  fixed  shall  be 
effective  for  a period  not  longer  than  five  years,  as  prescribed  by  ordi- 
nance, but  subsequent  increases  may  be  authorized  in  like  manner  and 
for  not  exceeding  a like  period. 

(5)  The  maximum  rate  so  fixed  may  be  inclusive  or  exclusive  of 
taxes  levied  to  meet  indebtedness  or  interest  thereon,  as  the  ordinance 
may  determine. 

(6)  The  General  Assembly  shall  not  directly  or  indirectly  im- 
pose upon  the  City  of  Chicago  or  the  inhabitants  or  property  thereof, 
any  taxes  for  municipal  purposes,  nor  create  or  provide  for  the  crea- 
tion of  new  municipal  corporations,  within-  the  County  of  Cook, 
having  taxing  powers  so  as  to  include  any  territory  of  the  city  or 
enlarge  or  increase  the  taxing  power  of  any  such  municipality  except 
with  the  consent  of  the  City  Council. 

(7)  Where  an  act  of  the  legislature  of  the  state  requires  govern- 
mental functions  to  be  carried  out  in  the  city  which  impose  a new 
or  additional  financial  burden  upon  the  government  of  the  city,  the 
city  may  with  the  consent  of  the  state  tax  commission,  to  be  filed  with 
the  City  Clerk,  provide  for  the  required  expense  by  levying  a tax  in 
addition  to  the  taxes  then  authorized  by  law. 

14.  (1)  The  City  of  Chicago  may  borrow  money  for  corporate 
purposes  and  issue  bonds  or  other  evidences  of  indebtedness  therefor. 

(2)  No  bonds  or  other  evidences  of  funded  indebtedness  shall  be 
issued  except  in  accordance  with  an  ordinance  authorizing  the  par- 
ticular issue,  which  shall  have  been  approved  by  the  voters  of  the 
City  in  accordance  with  general  provisions  of  law. 

(3)  No  bonds  or  other  evidences  of  funded  indebtedness  shall 
be  issued  except  in  accordance  with  a plan  providing  for  the  retire- 
ment of  said  bonds  within  a period  not  more  than  50  years  from  the 
time  of  their  issue,  and  provision  shall  be  made  in  the  ordinance  for 
the  levy  of  annual  taxes  and  the  application  of  the  proceeds  of  such 
taxes  to  carry  out  such  plan. 

(4)  The  aggregate  indebtedness  of  the  City  of  Chicago,  including 
existing  indebtedness,  shall  not  at  any  time  exceed  the  limit  fixed  by 


999 


city  ordinance  which  limit  may  be  expressed  therein  as  a stated 
amount  or  by  reference  to  the  taxable  resources  of  the  city. 

(5)  Such  ordinance  fixing  the  limit  of  aggregate  indebtedness 
shall  not  be  valid  without  the  approval  by  written  opinion  of  the 
State  Tax  Commission  (or  other  authority  exercising  the  functions 
of  a state  tax  commission)  and  shall  not  take  effect  until  the  expira- 
tion of  three  months  after  such  passage  and  approval  and  if,  during 
such  time  a petition  of  two  per  cent  of  the  legal  voters  for  the  submis- 
sion of  said  ordinance  to  referendum  shall  have  been  filed  with  the  City 
Clerk  pursuant  to  law,  not  until  said  ordinance  shall  have  been  ap- 
proved by  the  voters  of  said  city. 

(6)  Such  ordinance  shall  be  unalterable  for  a period  of  20  years 
from  the  time  it  shall  take  effect  and  thereafter  shall  be  alterable 
only  by  like  ordinance. 

(7)  Until  a limit  shall  have  been  fixed  as  above  provided,  the 
City  of  Chicago  shall  not  become  indebted  for  any  purpose  to  an 
amount  including  existing  indebtedness,  in  the  aggregate  exceeding 
five  per  cent  of  the  value  of  the  taxable  property  therein  to  be  as- 
certained by  the  last  assessment  for  state  and  county  taxes  previous 
to  the  incurring  of  such  indebtedness. 

(8)  Loans  incurred  for  the  financing  of  income-producing  prop- 
erty of  the  city  and  secured  by  the  pledging  of  such  property  or  its 
income,  or  franchises  or  privileges  necessary  for  its  enjoyment,  shall, 
to  the  extent  that  they  do  not  impose  upon  the  city  any  general  cor- 
porate liability,  not  be  included  in  the  limit  of  aggregate  indebted- 
ness fixed  as  aforesaid. 


CONSTITUTIONAL  CONVENTION 


BULLETIN  No.  12 


County  and  Local  Government 

in  Illinois 


Compiled  and  Published  by  the 
LEGISLATIVE  REFERENCE  BUREAU 
Springfield,  Illinois 


[Printed  by  authority  of  the  State  of  Illinois.] 


' 


LEGISLATIVE  REFERENCE  BUREAU. 


Governor  Frank  O.  Lowden,  Chairman. 
Senator  Edward  C.  Curtis,  Grant  Park. 
Senator  Richard  J.  Barr,  Joliet. 
Representative  Edward  J.  Smejkal,  Chicago. 
Representative  William  P.  Holaday,  Danville. 


E.  J.  Verlie,  Secretary. 

W.  F.  Dodd,  in  charge  collection  of  data  for 
constitutional  convention. 


TABLE  OF  CONTENTS. 


PAGE. 

I.  Summary '. 1007 

II.  Development  of  local  government  in  Illinois 1009 

Under  French  and  British  rule 1009 

The  territorial  period 1009 

Under  the  constitution  of  1818 1010 

Constitution  of  1848 1011 

Proposed  constitution  of  1862 1012 

Constitution  of  1870 1012 

Legislation  since  1870 1014 

III.  Present  conditions  in  Illinois 1018 

Introductory  1018 

County  areas  and  county  seats 1019 

County  boards 1020 

County  officers 1021 

T ownship  organization 1024 

Tax  administration 1027 

Road  administration 1027 

Justices  and  constables 1028 

School  administration 1029 

Drainage  districts 1030 

Cities  and  villages 1032 

Park  districts 1033 

Public  health  districts Y 1035 

Complexity  of  local  government 1035 

Local  finances 1037 

IV.  Local  government  in  other  states 1041 

Historical  development 1041 

Constitutional  provisions 1043 

General  characteristics  of  counties 1044 

County  government 1045 

County  home  rule 1047 

Towns  and  townships 1048 


CONTENTS— Concluded. 


PAGE. 

Villages,  boroughs  and  cities 1051 

Special  districts 1053 

State  supervision 1054 

V.  Comments  and  conclusions.... 1056 

Local  areas 1056 

Detailed  provisions  on  county  government 1056 

Home  rule 1058 


Appendix  no.  1. 


References 


1060 


Appendix  no.  2.  List  of  Illinois  counties,  with  areas,  popu- 
lation IN  1910,  AND  TYPES  OF  COUNTY  GOV- 
ERNMENT   1062 


Appendix 

1. 

2. 

3. 

4. 

5. 

6. 


no.  3.  Constitutional  provisions 1064 

Illinois  constitution,  Article  X,  Counties.  1064 

Maryland  constitution,  Article  XIA,  Local  legislation.  1066 
Michigan  constitution,  Article  VIII,  Local  government . 1070 
Minnesota  constitution,  Article  XI,  Counties  and  town- 
ships   1073 

Ohio  constitution,  Article  X,  County  and  township  or- 
ganization   1074 

Proposed  Ohio  county  home  rule  amendment 1075 


I.  SUMMARY. 


This  bulletin  presents  a general  survey  of  local  government  in  the 
state  of  Illinois,  and  a brief  comparison  of  conditions  in  other  states, 
with  special  reference  to  suggestions  for  changes  in  the  provisions  of 
the  state  constitution  relating  to  this  subject. 

Some  parts  of  the  general  subject  have  been  considered  in  more 
or  less  detail  in  other  bulletins  of  this  series.  Bulletin  No.  6 deals 
with  the  problem  of  municipal  home  rule  for  cities  and  villages.  Bul- 
letin No.  11  deals  with  the  problems  of  Chicago  and  Cook  County, 
and  sets  forth  in  detail  the  complexity  of  local  areas  in  Cook  County 
outside  of  Chicago,  which  is  much  of  the  same  character  as  that  in 
other  parts  of  the  state.  Bulletin  No.  4,  on  state  and  local  finance 
includes  a discussion  of  local  taxation  and  local  debt;  and  Bulletin 
No.  10  on  the  judicial  department  includes  a discussion  of  county, 
municipal  and  other  local  courts. 

These  special  topics,  covered  more  thoroughly  in  other  bulletins, 
are  therefore  only  referred  to  briefly  in  this  pamphlet;  and  the  main 
attention  in  this  bulletin  is  given  to  county  and  township  government 
and  the  numerous  series  of  overlapping  special  local  districts. 

The  constitutions  of  Illinois  have  dealt  with  the  subject  of  county 
government  in  increasing  detail.  A considerable  number  of  county 
officers  are  provided  for  each  county,  and  there  are  detailed  provisions 
as  to  the  compensation  of  these  officers.  There  are  also  provisions  for 
three  types  of  county  organization:  (1)  a board  of  county  commis- 

sioners, the  main  features  of  which  are  prescribed  in  the  constitution ; 
(2)  an  optional  township  system,  the  details  of  which  are  regulated 
by  the  general  assembly;  and  (3)  a special  organization  definitely  pro- 
vided by  the  constitution  for  Cook  County. 

With  the  detailed  constitutional  provisions,  both  as  to  county 
areas  and  county  government,  there  is  little  discretion  left,  either  to 
the  general  assembly  or  to  the  local  communities ; and  this  situation 
has  prevented  the  adaptation  of  county  government  to  the  needs  of 
different  types  of  counties  in  the  state.  Counties  in  Illinois,  vary 
from  small  agricultural  counties  of  less  than  10,000  population  to 
Cook  County,  with  a population  2,500,000 ; and  the  present  constitu- 
tional provisions  on  county  government  do  not  adequately  meet  the 
varying  needs  of  the  widely  different  types  of  counties. 

An  optional  system  of  township  government  is  provided  for  in 
the  constitution ; but  the  township  system  is  regulated  mainly  by 
statute.  Township  government,  however,  is  now  of  little  and  de- 
clining importance. 

Besides  counties  and  townships,  there  are  about  a thousand  cities 
and  villages ; and  superimposed  on  these  older  local  government  units 


1008 


are  a numerous  series  of  overlapping  special  districts.  Such  special  dis- 
tricts have  been  created  for  many  new  functions  of  local  government, 
and  also  for  functions  already  within  the  powers  of  previously  exist- 
ing authorities;  and  the  state  is  now  overlaid  with  an  intricate  net- 
work of  local  districts  and  authorities,  having  little  or  no  official  re- 
lations to  each  other.  Added  to  the  local  government  districts  are 
election  and  judicial  areas,  which  further  complicate  the  situation. 
No  attempt  has  been  made  to  organize  a correlated  system  of  local 
governing  bodies  to  exercise  the  numerous  functions  of  the  existing 
overlapping  authorities ; nor  has  any  effort  been  made  to  plan  election 
and  judicial  districts  so  that  they  will  correspond  with  each  other 
or  include  the  same  groups  of  local  government  districts. 

The  only  legislation  which  indicates  an  element  of  unity  among 
the  numerous  local  authorities  is  the  Juul  law,  which  attempts  to  pro- 
vide a maximum  for  the  aggregate  of  all  local  tax  rates.  But  this 
law  has  been  so  frequently  amended,  so  as  to  exempt  one  class  of  local 
authorities  after  another  from  the  provisions  for  scaling  down  taxes 
when  the  aggregate  local  taxes  exceed  the  maximum,  that  the  law  now 
affects  only  a small  number  of  taxes. 

Constitutional  provisions  as  to  uniformity  of  taxation  and  limit- 
ation of  municipal  debts  have  had  a good  deal  to  do  with  the  multipli- 
cation of  local  districts.  Where  previously  existing  local  authorities 
have  incurred  debt  substantially  to  the  constitutional  limit,  it  has 
become  customary  to  create  new  districts,  with  somewhat 
varying  boundaries  for  the  performance  of  certain  functions.  These 
new  districts  can  incur  an  entirely  new  debt  within  the  constitutional 
limitation.  As  a result,  the  present  debt  limitations  have  not  restricted 
the  amount  of  local  debt  which  may  be  incurred  for  a given  area ; but 
have  simply  led  to  the  creation  of  new  districts  for  the  purpose  of  in- 
curring larger  debts. 

Some  of  the  present  difficulties  in  connection  with  local  govern- 
ment in  Illinois  have  resulted  from  the  detailed  character  of  constitu- 
tional provisions.  Any  series  of  detailed  provisions  will  cause  diffi- 
culties on  account  of  changing  conditions ; and  the  problem  for  the 
constitutional  convention  of  1920  with  respect  to  local  government 
will  be  to  examine  the  present  constitutional  provisions,  with  a view 
of  modifying  or  eliminating  those  which  have  prevented  needed  legis- 
lation or  have  led  to  legislation  adding  to  the  complexity  of  local 
government,  rather  than  to  devise  and  place  in  the  constitution  a com- 
plete system  of  local  government. 

Many  American  states  now  have  detailed  provisions  on  local  gov- 
ernment in  their  constitutions,  although  few  have  as  much  detail  as 
that  of  Illinois.  Several  states,  however,  have  comparatively  brief 
and  general  provisions;  and  a number  of  others  (which  have  not  had 
a general  revision  of  their  constitutions  since  1860)  have  very  few 
constitutional  provisions  on  local  government.  Thirteen  states  now 
have  constitutional  provisions  for  municipal  home  rule.  Two  states 
(California  and  Maryland)  provide  for  county  home  rule  charters; 
and  a proposed  amendment  for  this  purpose  has  also  been  presented 
in  Ohio. 


1009 


II.  DEVELOPMENT  OF  LOCAL  GOVERNMENT  IN 

ILLINOIS. 


Local  government  in  Illinois  has  attracted  more  than  local  atten- 
tion, on  account  of  the  geographical  location  of  the  state,  as  the  meet- 
ing point  of  different  systems,  which  resulted  in  the  adoption  of 
optional  methods  in  different  parts  of  the  state.  At  the  same  time 
the  development  in  this  state  has  followed  the  same  general  tendencies 
as  in  other  states  towards  detailed  legislative  control,  with  a greatly 
decentralized  administration,  a complicated  series  of  overlapping  local 
districts,  and  an  unorganized  group  of  local  officials;  and  in  recent 
years  some  tendencies  toward  state  administrative  supervision.  A 
sketch  of  the  main  lines  of  this  development  will  serve  to  explain 
some  of  the  features  of  the  present  arrangements. 


Under  French  and  British  rule.  The  local  government  of  the 
early  French  settlements  on  the  bottom  lands  of  the  Mississippi  was 
comparatively  simple  and  unimportant.  The  principal  officials  were 
appointed  after  1732  by  the  French  governor  of  Louisiana,  but  there 
were  also  some  village  officers  for  the  local  affairs  of  the  several  set- 
tlements. During  the  Seven  Years  War  (1756-1763),  the  control  of 
the  superior  officials  was  relaxed;  and  by  the  treaty  of  Paris  (1763) 
the  Illinois  country  was  ceded  to  Great  Britain. 

During  the  period  of  British  occupation,  the  Illinois  settlements 
were  under  the  supervision  of  the  military  commander  of  the  district. 
Some  steps  were  taken  towards  the  introduction  of  English  law.  But 
on  the  outbreak  of  the  American  Revolution,  the  British  troops  were 
withdrawn;  and  the  French  settlements  were  captured  by  Captain 
George  Rogers  Clark  in  the  name  of  Virginia  in  1778. 


The  territorial  period.  In  December,  1778,  the  Virginia  as- 
sembly passed  an  act  organizing  the  county  of  Illinois ; and  the  Virginia 
county  system  was  introduced.  A county  lieutenant  was  appointed, 
who  selected  the  sheriff  and  militia  officers,  and  established  local  courts 
with  elected  justices  of  the  peace.  But  difficulties  with  the  inhabitants 
soon  arose;  and  after  1782  there  was  a period  of  confusion  and  dis- 
order, as  American  settlers  began  to  arrive. 

The  Illinois  region  was  included  in  the  Northwest  Territory  by 
the  Ordinance  of  1787 ; and  under  this  Ordinance,  Governor  St.  Clair 


1010 


established  the  counties  of  St.  Clair  (in  1790)  and  Randolph  (in  1795). 
The  county  organization  established  resembled  that  of  Virginia,  with 
sheriffs,  justices  of  the  peace,  and  other  officers  appointed  by  the  gov- 
ernor. Provision  was,  however,  also  made  for  establishing  civil  town- 
ships, as  in  Pennsylvania,  with  officials  appointed  by  the  county  court. 

In  1800,  the  Illinois  region  was  included  in  the  newly  created  terri- 
tory of  Indiana.  Some  changes  and  additions  to  the  machinery  of 
local  administration  were  made  by  the  governor  and  judges  of  Indiana, 
and  also  by  the  territorial  legislature  established  in  1805 ; and  a revised 
code  of  territorial  laws  enacted  in  1807  included  a number  of  chapters 
relating  to  local  government. 

In  1809,  the  territory  of  Illinois  was  organized;  and  further 
changes  were  made  in  the  details  of  local  government,  especially  relat- 
ing to  the  local  courts.  As  settlements  increased,  thirteen  new  counties 
were  formed  from  1812  to  1818.  Local  records  also  show  the  exist- 
ence of  civil  townships  within  the  counties. 


Under  the  constitution  of  1818.  The  first  state  constitution  of 
Illinois  provided  for  the  election  in  each  county  of  a sheriff,  a coroner, 
and  three  county  commissioners ; and  authorized  the  General  Assembly 
to  provide  for  the  appointment  of  justices  of  the  peace,  surveyors  of 
highways,  constables  and  other  local  officers.  Judges  of  the  higher 
courts  were  to  be  appointed  by  the  General  Assembly;  and  clerks  of 
courts  were  to  be  appointed  by  the  judges. 

These  decentralized  provisions  were  in  the  direction  of  the  Penn- 
sylvania system  of  local  government,  which  had  been  followed  in  Ohio 
and  Indiana.  The  civil  townships  were  also  continued  for  a time ; 
but  a series  of  acts  passed  between  1823  and  1827  provided  for  several 
kinds  of  sub-districts  within  the  counties  for  elections,  roads  and  other 
local  purposes,  eliminating  the  civil  township;  and  in  this  respect  the 
local  government  became  more  similar  to  that  of  Kentucky  and  Vir- 
ginia. At  the  same  time,  the  congressional  township  became  a local 
unit  for  school  affairs ; and  this  formed  a basis  for  the  later  develop- 
ment of  the  township  system  of  local  government. 

New  counties  were  created  at  almost  every  session  of  the  General 
Assembly;  and  by  1848  a total  of  100  had  been  established.1  Many 
counties  in  the  southern  part  of  the  state  were  very  small  both  in  area 
and  population.  The  Revised  Statutes  of  1845  established  restrictions 
on  the  formation  of  new  counties,  the  transfer  of  territory  and  the  re- 
moval of  county  seats. 

Other  changes  in  local  government  during  this  period  were  also 
steadily  in  the  direction  of  further  decentralization.  Justices  of  the 
peace  were  made  elective  in  1827.  About  100  incorporated  towns 
were  organized  by  special  charters,  or  after  1831,  under  a general  law; 
and  seven  cities  were  established  by  special  charters. 

1 One  of  them,  Highland,  was  later  reunited  to  Adams  County;  and  only 
three  additional  counties  have  been  organized  since  1848 — Kankakee  in  1853, 
and  Douglas  and  Ford  in  1859. 


1011 


The  school  laws. of  1841  and  1845  provided  for  the  local  election 
of  school  trustees  for  each  school  township,  and  the  formation  of 
school  districts  within  each  township. 


Constitution  of  1848.  In  the  constitutional  convention  of 
1847-48,  a number  of  important  changes  in  local  government  were  pro- 
posed. The  various  proposals  were  referred  to  several  different  com- 
mittees, and  the  committee  reports  presented  conflicting  recommenda- 
tions to  the  convention,  while  a number  of  minority  reports  increased 
the  complications.  The  result  was  a compromise  between  conflicting 
ideas,  and  the  adoption  of  a number  of  detailed  provisions  not  based 
on  consistent  principles. 

Some  provisions  were  in  the  direction  of  a simpler  and  more  con- 
centrated machinery  of  local  government.  Restrictions  on  the  forma- 
tion of  new  counties,  and  on  transfers  of  territory,  taken  from  the 
Revised  Statutes  of  1845,  served  to  put  an  end  to  the  further  creation 
of  more  counties.  In  the  same  direction  was  the  union  of  the  admin- 
istrative functions  of  the  county  commissioners  with  the  work  of  the 
probate  justices  in  a new  system  of  county  courts. 

On  the  other  hand,  while  the  coroner  was  omitted  from  the  list 
of  constitutional  county  officers,  a number  of  additional  elective  con- 
stitutional officers  were  provided,  including  county  judges,  state’s  or 
county  attorneys,  clerks  of  circuit  courts,  and  justices  of  the  peace. 
Another  provision,  authorizing  an  optional  system  of  township  organi- 
zation, opened  the  way  to  further  decentralization  of  local  administra- 
tion to  meet  the  wishes  of  the  northern  and  central  counties,  which 
were  being  settled  largely  from  eastern  states  with  township  gov- 
ernment. 

The  township  system  was  more  definitely  provided  for  by  an  op- 
tional law  of  1849,  which  was  revised  in  1851  and  1861,  and  amended 
from  time  to  time;  and  was  also  governed  in  some  respects  by  the 
revenue  laws  of  1853  and  1855.  County  and  township  government, 
under  these  laws,  resembled  that  in  New  York  and  Michigan,  rather 
than  that  in  Ohio  and  Indiana ; and  the  town  governments  fell  far 
short  of  the  powers  of  the  New  England  towns.  Town  meetings  were 
provided,  but  they  had  few  powers ; and  the  principal  functions  were 
vested  in  town  officers  for  the  administration  of  local  roads  and  for 
state  functions  such  as  the  assessment  and  collection  of  taxes.  In 
counties  which  adopted  the  township  system,  boards  of  supervisors 
elected  by  towns  took  over  the  administrative  functions  of  the  county 
courts. 

The  township  system  was  rapidly  adopted  in  many  counties.  At 
the  election  in  November,  1849,  it  was  accepted  by  24  counties  (17 
north  of  the  Illinois  river  and  7 in  the  central  part  of  the  state).  By 
1860,  it  had  been  established  in  36  additional  counties;  and  by  1870  in 
10  more  counties,  a total  of  70  of  the  102  counties.  Since  1870,  it  has 
been  adopted  by  16  other  counties  (14  by  1890  and  2 since  then), 
one  of  which  was  definitely  returned  to  the  county  system.  Several 


1012 


other  counties,  after  adopting  the  township  system,  have  voted  to  dis- 
continue it,  and  have  later  readopted  it. 

Notwithstanding  the  rapid  extension  of  the  township  system,  the 
separate  incorporation  of  towns  (villages)  and  cities  continued  much 
more  rapidly  than  before.  In  counties  which  adopted  the  township 
system,  the  number  of  very  small  incorporated  towns  was  somewhat 
less  than  in  counties  not  under  the  township  system;  but  even  where 
the  township  system  was  established,  many  incorporated  towns  were 
organized  within  the  townships.  By  1870  there  were  more  than  400 
incorporated  municipalities  in  the  state,  including  43  cities. 

Many  of  the  incorporated  towns  organized  during  this  period  were 
established  under  the  general  law  for  the  incorporation  of  towns ; but 
many  of  these  towns  secured  special  acts  with  additional  powers ; and 
many  towns  and  all  of  the  cities  were  governed  entirely  by  means  of 
special  legislation.  Much  special  legislation  was  also  passed  for  coun- 
ties and  other  local  districts ; and  the  enormous  mass  of  private  and 
special  laws  relating  to  local  government  was  one  of  the  most  striking 
features  of  the  period  under  the  constitution  of  1848,  especially  after 
1860. 

In  1857,  the  private  laws  formed  a volume  of  1,550  pages.  In 
1869,  they  formed  four  volumes  of  3,350  pages,  of  which  1,850  pages 
related  to  cities,  towns  and  schools. 


Proposed  constitution  of  1862.  The  proposed  constitution  of 
1862  contained  a number  of  additional  provisions  relating  to  local  gov- 
ernment, most  of  which  were  afterwards  included,  with  others,  in  the 
constitution  of  1870. 

Local  or  special  laws  were  prohibited  on  certain  subjects,  includ- 
ing laying  out,  opening,  altering  and  working  on  roads  or  highways ; 
vacating  roads,  town  plats,  streets,  alleys  and  public  squares ; locating 
and  changing  county  seats ; regulating  county  and  township  business ; 
and  regulating  the  jurisdiction  and  duties  of  justices  of  the  peace  and 
constables. 

The  prohibition  on  the  loan  of  public  credit  or  aiding  corporations 
or  associations  (placed  on  the  state  in  1848)  was  extended  to  any 
county,  city,  town,  township  or  school  district. 

A uniform  system  of  courts  was  provided,  but  with  some  special 
provisions  as  to  the  number  of  judges  and  court  clerks  in  Cook  county. 

The  coroner  was  restored  to  the  list  of  elective  county  officers; 
and  provision  was  made  for  the  election  of  a recorder  of  deeds  in 
counties  with  more  than  35,000  population,  and  a probate  judge  and  a 
probate  clerk  in  counties  with  more  than  100,000  population. 

Provision  was  made  for  discontinuing  township  organization  by  a 
vote  of  the  county. 


Constitution  of  1870.  In  the  constitutional  convention  of 
1869-70  many  changes  and  additions  were  proposed  in  relation  to  local 


1013 


government ; and  the  new  constitution  contained  a much  greater 
amount  of  detail,  imposing  further  restrictions  on  the  General  Assem- 
bly and  also  on  the  local  governments. 

The  most  important  change  was  the  prohibition  of  local  or  special 
legislation  in  a list  of  23  enumerated  subjects.  A considerable  number 
of  the  subjects  in  the  enumerated  list  related  to  local  government,  as 
follows : 

Laying  out,  opening,  altering  and  working  roads  or  highways ; 

Vacating  roads,  town  plats,  streets,  alleys  and  public  grounds; 

Locating  or  changing  county  seats ; 

Regulating  county  and  township  affairs  ; 

Regulating  the  jurisdiction  and  duties  of  justices  of  the  peace, 
police  magistrates  and  constables ; 

Incorporating  cities,  towns  or  villages,  or  changing  or  amending 
the  charter  of  any  town,  city  or  village; 

Providing  for  the  management  of  common  schools ; 

The  opening  and  conducting  of  any  election,  or  designating  the 
place  of  voting ; 

Chartering  or  licensing  ferries  or  toll  bridges; 

Creating,  increasing  or  decreasing  fees,  percentages  or  allowances 
of  public  officers  during  the  term  for  which  said  officers  are  elected 
or  appointed; 

Granting  to  any  corporation,  association  or  individual,  the  right 
to  lay  down  railroad  tracks,  or  amending  existing  charters  for  such 
purpose. 

At  the  same  time,  the  constitution  includes  a series  of  special 
provisions  relating  to  the  courts,  county  commissioners,  and  other 
county  officers  in  Cook  County. 

In  the  article  on  the  Judicial  Department,  several  changes  were 
made  in  the  provisions  relating  to  county  courts.  The  election  of 
county  judges  by  districts  of  two  or  more  counties  was  authorized. 
The  jurisdiction  of  county  courts  was  enlarged;  and  the  establishment 
of  separate  probate  courts  in  counties  of  over  50,000  population  was 
authorized.  A state’s  attorney  was  to  be  elected  in  each  county,  in 
place  of  one  for  each  judicial  circuit.  As  already  noted,  special  pro- 
visions were  adopted  relating  to  the  courts  of  Cook  County. 

Further  details  were  added  to  the  regulations  for  the  removal  of 
county  seats.  Voters  on  this  question  are  required  to  have  resided 
in  the  county  six  months  and  in  the  precinct  ninety  days  before  the 
election.  The  question  of  removal  may  not  be  submitted  oftener  than 
once  in  ten  years.  And  a three-fifths  vote  is  required  for  the  removal 
of  a county  seat  farther  from  the  center  of  the  county. 

For  the  management  of  county  business  in  counties  not  under 
township  organization,  a board  of  county  commissioners  was  again 
provided  (as  under  the  constitution  of  1818),  to  take  over  the  admin- 
istrative functions  of  the  county  court,  under  the  constitution  of  1848. 
For  Cook  County,  a special  provision  established  a board  of  15  county 
commissioners,  10  elected  from  the  city  of  Chicago  and  5 from  the 
towns  outside  the  city. 


1014 


Additions  were  made  to  the  list  of  constitutional  county  officers. 
Besides  adding  the  state’s  attorney,  the  coroner  was  again  named,  and 
provision  was  made  for  electing  probate  judges  and  recorders  of  deeds 
in  counties  with  over  50,000  and  60,000  population  respectively.  Sev- 
eral sections  dealt  in  considerable  detail  with  the  fees  and  compensation 
of  county  officers  and  required  semi-annual  reports  of  fees,  with 
special  provisions  for  Cook  County. 

It  was  proposed  to  require  township  organization  throughout  the 
state;  and  this  led  to  some  discussion  of  the  township  system.  The 
optional  provisions  were  however  retained,  with  additions  relating  to 
votes  on  adopting  and  on  continuing  or  discontinuing  the  township 
system,  providing  that  no  two  townships  should  have  the  same  name 
and  requiring  the  day  of  the  annual  town  meeting  to  be  uniform 
throughout  the  state. 

In  the  article  on  Revenue,  a limit  of  75  cents  on  the  $100 
assessed  valuation  was  established  for  county  taxes,  unless  an 
excess  be  approved  by  a vote  of  the  people  of  the  county. 
A more  definite  provision  was  adopted  relating  to  taxes  for 
corporate  purposes ; and  authorizing  cities,  towns  and  villages  to  make 
local  improvements  by  special  assessment  or  by  special  taxation  of  con- 
tiguous property  or  otherwise. 

As  a result  of  the  great  increase  in  municipal  debts  during  the 
preceding  decade  (largely  for  aid  to  railroads),  a limit  of  five  per 
cent  was  placed  on  such  debts,  with  a further  provision  requiring  the 
levy  of  an  annual  tax  to  pay  interest  on  any  debt  and  to  discharge 
the  principal  within  twenty  years. 

The  general  effect  of  these  changes  and  additions  was  to  stereo- 
type the  existing  system  of  detailed  legislative  control,  without  admin- 
istrative supervision,  and  to  make  changes  in  that  system  almost  im- 
possible. The  only  method  left  for  meeting  new  problems  and  for 
avoiding  in  some  measure  the  restrictions  imposed  was  the  creation 
of  new  classes  of  local  districts  and  local  authorities ; and  this  has 
added  further  complications  to  the  organization  of  local  government 
throughout  the  state. 


Legislation  since  1870.  At  the  session  of  the  General  As- 
sembly in  1872,  a series  of  revised  laws  relating  to  local  government 
were  passed,  which  were  for  the  most  part  incorporated  in  the  Re- 
vised Statutes  of  1874.  These  included: 

Several  acts  relating  to  fees  and  salaries  of  county  and  township 
officers. 

An  act  relating  to  public  libraries,  approved  March  7,  1872. 

An  act  to  provide  for  the  removal  of  county  seats,  approved 
March  15,  1872. 

An  act  in  regard  to  roads  and  bridges,  approved  March  21,  1872. 

An  act  for  the  assessment  of  property  and  for  the  levy  and  col- 
lection of  taxes,  approved  April  1,  1872. 


1015 


An  act  in  regard  to  elections,  and  to  provide  for  filling  vacancies 
in  elective  offices,  approved  April  3,  1872. 

An  act  to  provide  for  the  incorporation  of  cities  and  villages,  ap- 
proved April  10,  1872. 

The  Revised  Statutes,  however,  included  another  revision  of  the 
road  and  bridge  law,  which  repealed  that  of  1872. 

As  a result  of  these  measures,  the  laws  on  these  subjects  were 
codified  and  made  more  coherent,  and  these  general  laws  replaced  many 
provisions  in  local  and  special  acts.  But  there  was  also  a marked 
tendency  to  elaborate  still  further  the  details  of  statutory  regulations 
as  to  the  organization  and  functions  of  local  officers. 

The  Revised  Statutes  of  1874  have  been  amended  and  supple- 
mented by  much  later  legislation ; and  from  time  to  time  a revision  of 
the  laws  on  some  subjects  has  been  passed.  Most  of  thi; ; has  been 
in  the  form  of  general  laws ; and  the  prohibition  'on  local  and  special 
legislation  has  been  more  effective  than  in  many  other  states  in  re- 
stricting the  volume  of  legislation  and  the  proportion  of  laws  enacted 
for  particular  communities. 

Among  the  more  important  laws  relating  to  local  government, 
passed  since  the  Revised  Statutes  of  1874,  may  be  noted  the  following: 

Acts  revising  the  road  and  bridge  laws,  in  1877,  1879,  1883,  1887 
and  1913. 

Acts  relating  to  drainage  districts,  in  1879  and  1885. 

Acts  relating  to  park  districts,  in  1893  and  1895. 

An  act  to  revise  the  law  in  relation  to  justices  of  the  peace  and 
constables,  in  1895. 

An  act  to  regulate  the  civil  service  of  cities,  in  1895. 

An  act  concerning  local  improvements,  in  1897. 

An  act  for  the  assessment  of  property,  etc.,  in  1898. 

Acts  relating  to  primary  elections  in  1905,  1906,  1908,  1910  and 
1919. 

Acts  relating  to  high  school  districts,  in  1905,  1911  and  1917. 

An  act  to  revise  the  school  law,  in  1909. 

Commission  government  law,  in  1910. 

An  act  relating  to  forest  preserve  districts,  in  1913. 

An  act  relating  to  public  health  districts,  in  1917. 

In  these  and  other  acts,  however,  the  tendency  toward  greater  de- 
tail has  continued ; and,  notably  in  recent  years,  the  volume  of  legis- 
lation has  largely  increased.  In  1919,  there  were  202  acts  relating  to 
local  government,  aggregating  418  pages  in  the  session  laws.  Com- 
paratively few  of  these  (only  8 acts,  covering  39  pages)  related  spe- 
cifically to  county  and  township  government.  But  there  were  14  acts 
relating  to  cities  and  villages,  21  relating  to  schools,  15  relating  to 
roads  and  bridges,  17  relating  to  drainage,  8 relating  to  elections,  87 
making  changes  in  the  revenue  laws,  and  14  relating  to  courts,  and 
11  to  fees  and  salaries. 

The  volume  and  detail  of  legislation  on  local  government  has 
been  increased  by  the  use  of  various  devices  for  enacting  laws  general 
in  form  but  of  limited  application.  Counties,  cities  and  other  local 
districts  have  been  classified  usually  on  a basis  of  population,  though 


1016 


sometimes  on  other  grounds ; but  without  establishing  a definite  system 
of  classification.  The  use  of  optional  laws,  effective  only  in  com- 
munities which  vote  to  adopt  them,  has  been  extended ; and  in  a num- 
ber of  cases  such  laws  have  been  passed  with  special  reference  to  a 
particular  community.  New  types  of  local  districts  have  been  created, 
such  as  park,  drainage,  sanitary,  high  school  and  public  health  dis- 
tricts, with  overlapping  jurisdiction  covering  the  same  territory  as 
other  types  of  local  districts  and  adding  to  the  complexities  of  local 
government. 

Optional  laws  and  the  creation  of  overlapping  districts  have  been 
upheld  by  the  supreme  court ; and  there  is  apparently  no  limit  under 
the  present  constitution  to  the  extent  to  which  these  methods  may  be 
employed.  The  classification  of  local  districts  has  also  been  upheld  in 
a number  of  cases ; but  in  other  cases  some  forms  of  classification  have 
been  held  invalid,  as  being  based  on  no  reasonable  relation  to  the  pur- 
poses of  the  act.2 

Some  other  tendencies  in  the  legislation  and  in  the  general  con- 
ditions of  local  government  since  1870  may  be  briefly  noted.  The 
movement  in  the  direction  of  decentralization  has  continued,  as  illus- 
trated by  the  further  extension  of  the  township  system,  and  by  the 
introduction  (in  1887)  of  elective  road  district  commissioners  in  coun- 
ties not  under  township  organization.  The  latter  change  removed  one  of 
the  important  distinctions  between  the  two  forms  of  county  govern- 
ment in  Illinois.  The  creation  of  new  types  of  local  districts  also 
illustrates  the  tendency  towards  decentralization. 

At  the  same  time,  but  more  especially  in  the  last  twenty  years, 
there  have  been  distinct  steps  in  the  direction  of  more  centralized  local 
government.  This  has  been  indicated  by  changes  in  the  laws  increas- 
ing the  powers  and  importance  of  county  officers,  as  compared  with 
the  town  officers,  in  such  matters  as  the  administration  of  poor  relief, 
highways  and  the  assessment  and  collection  of  taxes,  and  by  the  re- 
duction in  the  number  of  town  highway  commissioners  from  three  to 
one.  The  declining  importance  of  the  civil  town  has  been  aided  by 
the  close  restrictions  on  its  power  of  taxation  and  the  failure  to  enlarge 
its  authority ; and  is  reflected  in  the  gradual  disappearance  of  the  town 
meeting  as  an  active  agency,  and  the  exercise  of  such  town  functions 
as  remain  by  administrative  officers  acting  under  the  minute  regula- 
tions of  statute  law. 

More  notable  has  been  the  great  development  of  municipal  powers 
and  functions  in  the  incorporated  cities  and  villages.  This  has  been 
due  primarily  to  the  increase  of  urban  population ; but  has  been  aided 
by  the  fact  that  the  urban  districts  have  been  adjusted  in  area  from 
time  to  time  with  changes  in  population  so  as  to  correspond  more  close- 
ly to  the  needs  for  public  services  than  the  fixed  and  artificial  boun- 
daries of  the  townships.  Moreover  the  organization  of  urban  govern- 
ment under  the  cities  and  villages  act  and  still  more  under  the  com- 
mission plan  has  been  placed  on  a more  concentrated  and  systematic 
basis  than  that  of  other  local  authorities. 

2Devine  v.  Commissioners  of  Cook  County.  84  111..  590  (1877):  People  v. 
Knopf.  183  111.  410  (1900);  Douglas  v.  People,  225  111.  536  (1907).  See  Bulle- 
tin No.  6,  on  Municipal  Home  Rule. 


1017 


Still  further,  there  has  been  a considerable  development  of  state 
administration  in  fields  formerly  in  the  hands  of  local  officials.  State 
aid  and  supervision  of  local  authorities  have  been  established  in  the  case 
of  schools  through  the  Superintendent  of  Public  Instruction;  for 
county  jails  and  poor  houses,  through  the  State  Board  of  Charities, 
replaced  by  the  State  Charities  Commission,  and  in  1917,  by  the  depart- 
ment of  Public  Welfare;  in  the  work  of  road  construction,  by  the  State 
Highway  Commission  and  the  present  department  of  Public  Works 
and  Buildings;  and  in  the  assessment  of  property  for  taxation  by  the 
State  Tax  Commission,  established  in  1919. 

In  other  cases  a more  complete  transfer  of  functions  from  local 
to  state  officials  has  been  accomplished,  as  in  the  assessment  of  railroad 
property  by  the  State  Board  of  Equalization,  and  now  by  the  State 
Tax  Commission;  the  development  of  state  charitable  institutions 
whose  management  was  more  thoroughly  centralized  under  the  State 
Board  of  Administration  in  1909  and  combined  with  the  state  correc- 
tional institutions  under  the  department  of  Public  Welfare  in  1917 ; 
and  the  control  of  public  utilities  by  the  Public  Utilities  Commission 
established  in  1913. 

The  reorganization  of  state  administration,  by  the  civil  administra- 
tive code  of  1917,  into  an  integrated  and  coherent  system,  does  not 
directly  affect  the  machinery  of  local  government.  But  it  serves  as 
further  indication  of  the  tendency  towards  more  systematic  and  effi- 
cient public  administration.  And  at  the  same  time,  it  offers  a marked 
contrast,  to  the  unorganized  arrangements  in  most  of  the  local  districts 
and  in  the  local  governments  as  a whole. 


1018 


III.  PRESENT  CONDITIONS  IN  ILLINOIS. 


Introductory.  Local  government  in  Illinois  is  now  regulated 
by  a considerable  number  of  constitutional  provisions  and  a more 
numerous  aggregation  of  laws  scattered  through  the  statutes.  In 
addition  to  the  laws  on  the  more  important  local  governments, — cities 
and  villages,  counties  and  township  organization, — there  are  other 
important  chapters  in  the  Revised  Statutes  which  must  be  considered, 
including  those  on  courts,  drainage,  elections,  parks,  revenue,  roads 
and  bridges,  and  schools,  and  a considerable  number  of  shorter  chap- 
ters on  still  other  subjects,  such  as  various  county  officers,  fees  and 
salaries,  and  justices  and  constables.  Altogether  some  thirty  chapters 
in  the  Revised  Statutes  bear  directly  on  different  phases  of  this  subject ; 
while  there  are  many  further  provisions  in  other  chapters.  All  of 
the  more  important  chapters  of  the  Revised  Statutes  have  been  fre- 
quently amended,  and  also  supplemented  by  numerous  acts  dealing 
with  particular  topics.  A good  number  of  acts  apply  only  to  certain 
classes  within  a general  type  of  local  districts ; while  other  laws  are 
optional,  and  have  been  adopted  only  by  some  districts ; and  in  some 
cases  such  laws  apply  in  fact  only  to  a single  district. 

The  result  is  a confusing  mass  of  legislation,  which,  while  less 
bulky  than  the  special  legislation  before  1870,  is  nevertheless  highly 
complex;  and  the  task  of  extracting  even  the  main  features  of  the 
existing  arrangements  is  one  of  no  little  difficulty. 

There  are  three  main  types  of  local  government  districts : counties, 
townships  and  school  districts.  Every  part  of  the  state  is  at  the  same 
time  in  a county,  a school  township  and  a school  district;  and  every 
part  of  the  state  is  also  in  a civil  township  or  a road  district.  In 
addition  there  are  about  a thousand  cities,  villages  and  incorporated 
towns ; and  also  a considerable  number  of  drainage,  park,  high  school, 
and  other  special  districts.  All  of  these  municipal  districts  overlap 
each  other ; and  the  result  is  a more  complicated  and  confusing  net- 
work of  local  areas  and  local  authorities  than  in  any  other  state.  Still 
further,  there  are  several  classes  of  other  districts — senatorial,  ju- 
dicial and  congressional — , composed  for  the  most  part  of  groups 
of  counties,  for  electoral  and  judicial  purposes.  Each  of  these  classes 
in  turn  overlaps  the  other ; and  adds  further  to  the  complexity  of  the 
electoral  and  governmental  organization. 

Moreover,  there  is  no  official  record  of  all  of  these  local  dis- 
tricts. Many  districts  are  formed  by  local  proceedings,  recorded  only 
in  the  county,  or  in  some  cases  only  in  the  records  of  minor  local 
authorities. 


1019 


Some  confusion  is  caused  by  the  different  meanings  for  the  terms 
town  and  township.  The  congressional  township  is  a geographical 
area  used  in  the  land  surveys,  and  as  such  has  no  political  significance ; 
but  is  in  most  cases  (but  not  always)  co-terminous  with  the  school 
township.  The  civil  town,  under  the  township  organization  law,  is 
more  often  different  in  area  from  the  school  and  congressional  town- 
ship. Incorporated  towns  are  villages  organized  under  special  charters 
before  1870. 


County  Government. 

County  Areas  and  County  Seats.  The  state  constitution  contains 
a series  of  detailed  restrictions  as  to  the  creation  of  new  counties, 
changes  of  county  boundaries  and  removal  of  county  seats ; and  these 
are  supplemented  by  statutory  provisions  on  the  same  subject,  and 
for  the  union  of  counties.  In  fact  no  new  counties  have  been  created 
since  1859,  and  no  counties  have  been  united. 

There  are  102  counties  in  the  state,  29  with  less  than  400  square 
miles,  the  minimum  area  for  new  counties,  and  several  with  less  than 
200  square  miles,  while  half  a dozen  counties  are  more  than  1,000 
square  miles  in  area.  In  population,  the  counties  range 
from  7,000  to  more  than  2,500,000;  50  counties  had  less  than 
25,000,  and  17  had  more  than  50,000  population  in  1910. 

A good  many  difficulties  in  the  operation  of  county  government 
arise  from  these  wide  variations  in  area  and  population.  The  county 
officers  required  by  the  constitution  are  more  than  are  needed  in  many 
of  the  small  counties ; and  more  efficient  and  economical  administration 
could  be  secured  by  combining  the  functions  of  two  or  more  officials, 
or  by  giving  some  officials  jurisdiction  over  several  of  the  smaller 
counties,  or  by  uniting  several  small  counties.  In  other  populous 
states,  most  counties  are  both  larger  in  area  and  have  more  population 
than  many  counties  in  Illinois. 

The  increase  in  population  in  Illinois  since  1870  has  been  in  the 
larger  counties  with  urban  population,  while  the  small  counties  have 
decreased  in  population  since  1900. 

Referendum  votes  are  required  by  the  constitution  and  by  statutes 
for  a number  of  county  matters : for  the  organization  of  new  counties, 
for  changes  in  boundaries  or  for  the  union  of  counties,  for  issuing 
bonds,  for  levying  county  taxes  above  the  constitutional  limit  of  75 
cents  on  the  $100,  for  adopting  or  discontinuing  township  organization, 
or  for  establishing  a tuberculosis  sanitarium.  In  counties  under  town- 
ship organization  such  votes  are  required  on  the  question  of  township 
support  of  paupers ; and  in  counties  not  under  township  organization 
for  the  construction  of  public  buildings,  or  the  establishment  of  a 
county  normal  school. 

County  government  is  regulated  to  a considerable  extent  by  con- 
stitutional provisions,  and  in  further  detail  by  statutory  legislation. 
But  it  cannot  be  said  that  any  definite  principles  of  organization  have 
been  followed.  There  is  an  elective  county  board,  and  a considerable 


1020 


list  of  elective  administrative  and  judicial  officers;  but  the  distribution 
of  powers  does  not  follow  at  all  closely  the  traditional  American 
theory;  nor  is  there  even  a nominal  chief  executive  corresponding  to 
the  governor  or  mayor. 

County  Boards.  Each  county  is  a body  politic  and  corporate; 
and  its  powers  as  such  are  exercised  by  a county  board  in  one  of  three 
distinct  types.  In  counties  not  under  township  organization  (now  17 
in  number)  the  state  constitution  provides  for  “The  Board  of  County 
Commissioners,”  consisting  of  three  members  elected  at  large,  one 
each  year.  For  Cook  County,  the  constitution  provides  for  a board 
of  fifteen  commissioners,  ten  elected  from  the  city  of  Chicago  and  five 
from  the  towns  outside  of  the  city ; and  by  statute  these  commissioners 
are  now  elected  for  a four-year  term,  and  a member  is  elected  as 
president  of  the  board  with  special  powers. 

For  the  eighty-four  counties  under  township  organization,  the 
county  law  provides  for  boards  of  supervisors,  elected  by  towns  at  the 
town  meetings  in  April  for  terms  of  two  years.  The  number  of  super- 
visors varies  with  the  number  of  towns  in  the  county,  and  assistant 
supervisors  are  also  elected  from  the  larger  towns  (one  for  each 
2,500  population  over  4,000).  The  size  of  these  county  boards  ranges 
from  5 in  Putnam  county,  to  53  in  LaSalle  county.  In  eighteen  coun- 
ties there  are  30  or  more  members. 

The  large  boards  of  supervisors  have  been  supported  on  the 
theory  that  they  form  the  legislative  branch  of  county  government. 
But  they  have  practically  no  legislative  power;  and  for  their  adminis- 
trative functions  their  size  makes  them  unwieldy  and  ineffective. 
Most  states  have  county  boards  of  from  three  to  seven  members ; and 
only  five  or  six  states  have  such  large  county  boards  as  in  Illinois. 

Replies  to  inquiries  sent  to  county  officials  by  a committee  of  the 
General  Assembly  in  1912,  showed  a marked  difference  of  opinion 
as  between  the  two  main  types  of  county  boards  in  Illinois.  A major- 
ity of  replies  were  in  favor  of  the  small  boards  of  commissioners ; and 
the  proportion  on  this  side  was  greater  among  the  replies  from  the 
more  populous  counties  with  the  larger  boards  of  supervisors.  This 
situation  seems  to  indicate  the  desirability  of  an  intermediate  form  of 
county  board  organization,  between  the  small  boards  of  three,  and  the 
larger  boards  of  supervisors ; and  it  would  seem  advisable  for  the 
constitution  to  permit  such  intermediate  types  in  counties  which  wish 
them. 

All  three  types  of  county  boards  have  the  same  general  powers, 
though  each  class  has  some  additional  powers,  all  of  which  are  set 
forth  in  detail  in  the  statutes.  They  have  charge  of  county  buildings 
and  other  property ; they  levy  county  taxes ; they  control  county  finan- 
ces to  some  extent ; they  have  limited  powers  as  to  roads,  bridges,  fer- 
ries, and  county  ditches  and  drains;  they  maintain  poor  farms,  jails 
and  workhouses,  and  may  grant  pensions  to  the  blind  and  to  dependent 
mothers ; they  have  some  powers  in  connection  with  elections,  fill 
vacancies  in  county  offices,  prepare  jury  lists,  and  may  grant  certain 
bounties  and  rewards ; they  may  make  appropriations  for  county  fairs 
and  farmers’  institutes ; and  organize  townships  or  road  districts. 


1021 


The  small  boards  of  county  commissioners  formerly  had  larger 
powers  in  connection  with  highway  matters.  They  also  act  as  boards  of 
health  and  boards  of  review  of  assessments,  designate  overseers  of  the 
poor  and  appoint  a few  minor  local  officials.  But  their  functions  are 
not  in  any  large  degree  more  important  than  those  of  the  boards  of 
supervisors. 

These  enumerated  powers  are  limited  in  extent ; and  fall  far  short 
of  giving  the  county  boards  complete  control  over  county  administra- 
tion. The  powers  of  the  elective  county  officers  are  also  conferred  by 
statute,  and  some  of  the  officers  have  also  ancient  common  law  powers. 
The  county  boards  regulate  the  salaries  of  these  officers,  within  certain 
limits;  but  have  no  effective  control  over  them.  Nor  is  any  county 
officer  vested  with  general  authority  over  the  others,  as  a chief  ex- 
ecutive. 

The  small  boards  of  county  commissioners  and  the  boards  of 
supervisors  each  elect  a chairman.  Regular  meetings  are  prescribed 
by  statute  (five  for  the  county  commissioners,  and  two  for  the  boards 
of  supervisors)  ; but  special  meetings  are  also  authorized  and  are  held 
frequently.  Boards  of  supervisors  usually  hold  four  or  five  meetings 
a year;  and  county  commissioners  in  some  counties  meet  every  month, 
and  sometimes  more  frequently.  In  1911-12,  the  Morgan  county 
board  of  commissioners  held  12  meetings,  which  aggregated  110  days 
in  session. 

Much  of  the  work  of  the  large  boards  of  supervisors  is  done  by 
means  of  committees.  Such  boards  in  the  larger  counties  have  from 
twelve  to  more  than  twenty  committees.  In  Will  county  there  are 
26  committees  for  the  year  1919-20. 

County  Officers.  The  state  constitution  provides  for  the  elec- 
tion in  each  county  of  a county  judge,  state’s  attorney,  sheriff, 
county  clerk,  clerk  of  the  circuit  court,  treasurer,  coroner  and 
county  superintendent  of  schools.  Under  the  constitution  and 
statutes,  a county  superintendent  of  schools  is  elected  in  all  coun- 
ties, a recorder  of  deeds  in  counties  with  over  60,000  population, 
and  a probate  judge  in  counties  with  over  70,000.  By  statute, 
provision  is  further  made  for  the  election  of  a county  surveyor 
in  all  counties,  a clerk  of  probate  in  counties  over  70,000  population, 
and  (by  Act  of  1911 ) a county  auditor  in  counties  with  a population 
between  75,000  and  300,000. 

All  of  these  county  officers  are  elected  for  four-year  terms  at 
the  general  November  elections.  County  judges,  probate  judges, 
county  clerks,  sheriffs,  treasurers  and  county  superintendent  of 
schools  are  elected  in  the  middle  of  the  governor’s  term ; while 
state’s  attorneys,  clerks  of  the  circuit  courts,  recorders,  coroners, 
surveyors  and  county  auditors,  are  elected  at  the  same  time  as  the 
governor.  No  person  elected  as  sheriff  or  treasurer  is  eligible  for 
reelection  for  four  years  after  the  term  for  which  he  has  been 
elected. 

The  election  of  this  list  of  from  nine  to  thirteen  county  offi- 
cers (from  four  to  seven  at  one  election)  adds  a good  deal  to  the 


1022 


length  of  the  ballot.  If  it  is  desired  to  shorten  the  county  ballot, 
changes  in  the  constitutional  provisions  will  be  necessary. 

The  county  judge  is  both  a judicial  and  an  administrative 
officer.  He  has  a limited  jurisdiction  in  civil  cases,  and  concur- 
rent jurisdiction  with  the  circuit  courts  in  appeals  from  justices 
of  the  peace  and  police  magistrates.  He  also  has  important  powers 
in  tax  matters,  in  supervising  elections  and  other  administrative  af- 
fairs. In  most  counties  he  further  has  jurisdiction  in  matters  of 
probate;  but  in  counties  of  over  70,000  population,  this  business 
is  vested  in  a separate  probate  court,  with  a separate  probate 
judge  and  probate  clerk. 

The  state’s  attorney  is  primarily  a public  prosecutor  in  crim- 
inal cases,  acting  in  this  respect  distinctly  as  an  agent  of  the 
state  government.  He  also  acts  5s  legal  advisor  to  the  county  board 
and  county  officers.  In  view  of  his  principal  functions,  it  may  be 
urged  that  this  officer  should  be  appointed  by  the  governor  or  attor- 
ney-general, as  the  direct  representative  of  the  state  government. 
It  may  also  be  said  that  there  seems  little  need  for  a separate 
officer  for  each  of  the  smaller  counties ; and  that  one  person  might 
act  for  two  or  more  of  such  counties.  Under  section  30  of  Article 
VI,  state’s  attorneys  can  be  removed  only  on  prosecution  and  con- 
viction for  misdemeanor  in  office.  It  may  become  desirable  to 
provide  for  some  other  method,  as  by  the  governor  in  the  case  of 
sheriffs. 

The  county  clerk  has  the  greatest  variety  of  duties ; and  from 
his  official  relations  to  most  branches  of  county  government,  he 
is  tending  to  become  the  de  facto  chief  administrative  officer  of  the 
county.  He  is  custodian  of  the  county  records,  clerk  (and  in 
most  counties  also  accountant)  for  the  county  board,  and  clerk  of 
the  county  court.  He  has  important  duties  under  the  primary  and 
election  laws,  and  in  the  assessment  of  property  and  the  exten- 
sion and  collection  of  taxes.  He  issues  hunters’  and  marriage  li- 
censes, and  has  in  addition  numerous  other  duties.  By  statute 
the  county  clerk  might  be  given  some  of  the  legal  powers  of  a 
chief  executive. 

The  -county  treasurer  is  primarily  custodian  of  county  funds, 
but  in  counties  under  township  organization  is  also  county  collec- 
tor of  taxes  (for  the  state,  county  and  other  local  districts). 
Since  the  abolition  of  township  collectors  by  act  of  1917  in  counties 
of  less  than  100,000  inhabitants,  all  general  property  taxes  are  col- 
lected by  this  officer.  He  is  also  supervisor  of  assessments  in  counties 
under  township  organization,  and  assessor  in  counties  not  under  town- 
ship organization. 

The  clerk  of  the  circuit  court  keeps  records  of  the  proceedings 
of  the  circuit  court  in  the  county,  and  in  most  counties  he  acts 
also  as  recorder  of  deeds.  In  counties  of  more  than  60,000  popu- 
lation a separate  recorder  of  deeds  is  elected.  By  act  of  1897  for 
the  registration  of  land  titles,  the  recorder  of  deeds  is  also  registrar 
of  land  titles  in  counties  adopting  the  act. 


1023 


The  office  of  sheriff  has  lost  much  of  its  former  importance, 
but  it  is  still  the  one  office  always  provided  for  every  county  in  the 
country.  He  is  chief  conservator  of  the  peace,  but  has  no  organ- 
ized force  for  maintaining  order ; in  emergencies  he  may  appoint 
special  deputies,  organize  a posse  comitatus,  or  call  on  the  governor 
for  military  aid.  For  the  most  part  he  acts  as  ministerial  agent 
of  the  judicial  courts,  serving  writs  and  orders,  and  has  charge 
of  prisoners  and  the  county  jail.  In  counties  not  under  township 
organization,  he  is  district  and  county  collector  of  taxes.  His  re- 
sponsibility to  the  state  is  now  emphasized  by  an  act  of  1905,  which 
provides  that  if  a prisoner  in  the  custody  of  a sheriff  is  lynched, 
the  governor  shall  declare  the  office  vacant. 

The  coroner  is,  next  to  the  sheriff,  the  oldest  county  officer ; 
but  his  principal  function  is  to  hold  inquests  in  case  of  sudden 
death,  which  may  be  due  to  violence  or  other  undue  cause.  These 
inquests  are  a curious  survival  of  an  antiquated  procedure,  which 
served  a useful  purpose  in  medieval  times  when  there  was  no  other 
provision  for  the  investigation  and  prevention  of  crime.  In  some 
states  this  work  is  done  by  appointing  medical  examiners,  and  by 
leaving  criminal  investigations  to  the  state’s  attorney. 

The  county  superintendent  of  schools  acts  as  agent  of  the 
state  in  distributing  the  state  school  funds ; he  inspects,  supervises  and 
advises  local  school  officers ; and  holds  teacher’s  examinations 
and  teacher’s  institutes,  under  the  supervision  of  the  state  superin- 
tendent of  public  instruction.  He  is  a more  effective  intermediary 
between  the  state  and  local  officials  in  the  smaller  districts  than 
is  provided  in  any  other  branch  of  administration.  But  the  report 
of  the  Educational  Commission  of  1909  cited  facts  and  opinions 
in  favor  of  other  methods  of'  selection  than  popular  election  for  a 
brief  term  of  years.  In  eleven  or  more  states  officials  correspond- 
ing to  county  superintendents  of  school  are  appointed,  as  are  prac- 
tically all  city  superintendents  of  schools. 

In  addition  to  the  elective  county  officers  provided  by  the 
state  constitution,  there  are  several  appointive  officers  created  by 
statute ; and  a number  of  other  positions  established  by  the  county 
boards.  The  statutory  county  offices  include  county  boards  of  re- 
view, county  surveyors,  county  superintendents  of  highways,  and 
(in  counties  over  75,000  population)  county  auditors. 

The  county  surveyor  makes  official  surveys  on  the  order  of 
a court  or  on  the  application  of  private  parties. 

County  boards  of  review,  (in  counties  under  township  organi- 
zation other  than  Cook  county)  are  composed  of  the  chairman 
of  the  board  of  supervisors,  and  two  citizens  appointed  annually 
by  the  county  judge.  In  Cook  county  a board  of  review  of  three 
members  is  elected.  In  counties  not  under  township  organiza- 
tion, the  board  of  county  commissioners  acts  as  a board  of  review. 
These  boards  review  and  equalize  the  assessments  of  property  for 
taxation  made  by  the  local  assessors. 


1024 


County  superintendents  of  highways  are  appointed  by  joint 
action  of  the  county  boards  and  the  state  highway  authorities. 
The  county  boards  submit  lists  of  residents,  from  which  the  state 
highway  authorities  determine  by  competitive  examination  those 
best  fitted ; and  from  those  found  eligible  the  county  boards  make 
the  appointments.  The  term  of  office  is  six  years,  subject  to  re- 
moval by  the  county  board  for  incompetence,  neglect  of  duty  or 
malfeasance  in  office.  These  officers  prepare  plans  and  estimates 
for  county  bridges,  supervise  county  roads,  visit  and  inspect  town 
and  district  highways  and  bridges,  and  act  as  deputies  to  the  State 
Highway  Engineer. 

In  counties  with  over  75,000  population  and  less  than  300,000, 
county  auditors  are  elected.  In  Cook  County  the  county  clerk  is 
ex-officio  county  comptroller.  In  other  counties,  the  county  clerks 
act  in  some  respects  as  accountants  for  county  finances,  subject 
to  the  county  board. 

In  counties  where  coal  is  produced,  county  boards  are  re- 
quired to  appoint  a county  mine  inspector,  at  the  request  of  the 
district  state  mine  inspector. 

County  boards  may  also  appoint  commissioners  of  Canada 
thistles,  for  election  precincts  or  towns ; and  in  counties  not  un- 
der township  organization,  the  county  boards  are  required  to 
appoint  annually  three  fence  viewers  in  each  precinct. 

A public  administrator  is  appointed  for  each  county  by  the 
governor,  for  a term  of  four  years.  Masters  in  chancery  and  court 
reporters  are  appointed  by  the  circuit  courts ; and  probation  offi- 
cers by  the  circuit  and  county  courts. 

In  most  counties,  under  the  rules  of  the  county  boards,  provi- 
sion is  made  for  a superintendent  of  the  county  poor  farm  and  a 
county  physician ; and  in  Cook  county  there  are  a number  of  other 
county  positions. 

The  staff  of  county  employees  in  the  different  counties  varies 
to  a large  extent.  In  Cook  county  there  are  about  3,000  positions 
covered  in  the  annual  appropriation  bill ; and  a considerable  force 
of  additional  help  employed  in  the  several  tax  offices.  A part  of 
these  are  selected  in  accordance  with  civil  service  regulations  under 
the  county  civil  service  commission  ; but  in  some  of  the  county 
offices  (such  as  the  state’s  attorney  and  sheriff)  most  of  the  positions 
are  exempted  as  confidential. 

In  the  small  counties  there  are  but  few  county  employees 
in  addition  to  the  elective  officers ; but  in  some  of  the  larger  coun- 
ties, while  the  number  in  any  one  office  is  not  many,  the  aggregate 
of  county  employees  is  a considerable  force.  But  in  none  of  the 
counties  except  Cook  is  there  any  definite  system  of  classify- 
ing the  employees  or  any  civil  service  regulations  governing  their 
selection. 


Township  organization.  The  state  constitution  requires  the 
general  assembly  to  provide  for  an  optional  system  of  township 


1025 


organization,  and  also  to  provide  for  submitting  the  question  of 
discontinuing  such  township  organization  on  a referendum  vote. 
The  procedure  is  further  regulated  by  statute ; ' and  it  may  be 
noted  that  a smaller  petition  (only  50  votes)  is  required  to  present 
the  question  of  adopting  the  township  system  than  for  the  ques- 
tion of  discontinuance,  for  which  a petition  of  at  least  one-fifth 
of  the  legal  voters  is  required. 

Of  the  102  counties  in  Illinois,  85  now  have  the  township  sys- 
tem. Only  two  counties  have  adopted  township  organization  since 
1890.  The  counties  not  under  township  organization  are  in  the 
central  and  southern  parts  of  the  state ; and  most  of  them  are 
small  in  area  and  population.  Morgan  county  with  34,000  popula- 
tion in  1910  is  the  largest;  and  only  six  of  these  counties  had  more 
than  15,000  population. 

In  the  85  counties  under  township  organization,  there  were 
1,430  civil  townships  in  1910,  with  an  average  area  of  35.3  square 
miles.  Many  of  the  civil  townships,  however,  are  smaller  or  larger 
than  the  congressional  townships.  Most  townships  have  a popu- 
lation of  from  1,000  to  2,000;  but  townships  including  villages  and 
cities  have  a much  larger  population.  In  some  cases  there  is  a 
considerable  population  in  the  township  outside  of  a city  within 
its  limits.  In  1910,  the  town  of  Joliet  had  a population  of  50,640, 
and  the  city  of  Joliet,  34,670. 

The  organization  and  powers  of  towns  are  regulated  entirely 
by  statutes.  The  legal  authority  is  very  limited.  They  are  vested 
with  corporate  capacity,  and  may  levy  local  taxes  and  make  by 
laws  for  a few  enumerated  purposes.  They  elect  a number  of  minor 
officials ; but  the  matters  which  form  the  important  business  of 
New  England  towns  are  in  Illinois  mainly  looked  after  by  cities, 
villages  and  school  districts. 

Provision  is  made  for  an  annual  town  meeting  of  the  electors  on 
the  first  Tuesday  in  April,  for  the  election  of  town  officers  and  the 
transaction  of  business ; and  special  town  meetings  may  also  be  held. 
But  in  operation  the  town  meeting  in  Illinois  is  of  slight  importance. 
Its  powers  are  closely  limited  and  the  principal  town  tax  (for  roads) 
is  now  levied  without  action  by  the  town  meeting.  Attendance  at  the 
annual  town  meetings  is  in  most  places  very  small.  Inquiries  made  for 
a committee  of  the  General  Assembly  in  1912,  secured  replies  as  to 
attendance  at  the  town  meetings  from  only  440  of  the  1430  towns  in 
the  state.  Only  144  replies  (barely  a tenth  of  the  towns)  reported  an 
attendance  of  more  than  50  at  the  business  meeting;  and  only  39 
towns  reported  an  attendance  of  over  100.  In  towns  including  cities 
of  some  size,  the  town  meetings  are  of  even  less  importance  than  in 
smaller  places ; they  are  seldom  attended  by  more  than  a handful  of 
voters  and  in  some  places  no  business  meetings  are  held. 

A town  clerk  in  a town  of  2,500  population  in  one  of  the  northern 
counties  reported  an  attendance  of  13  persons,  which  included : “six 
judges  and  clerks  of  election,  two  town  officers,  one  professional  candi- 
date for  moderator,  and  one  innocent  bystander  in  the  booth  marking 


his  ballot,  leaving  three  plain  citizens,  who  were  evidently  interested 
in  the  meeting.”  The  same  officer  stated  that  in  a period  of  25  years, 
there  had  been  three  occasions  when  the  road  and  bridge  tax  was 
levied  at  the  town  meeting  and  two  resolutions  had  been  adopted. 
Ordinarily,  the  only  business  at  the  town  meeting  was  to  read  the  re- 
ports of  town  officers,  and  to  levy  the  trifling  town  tax  for  miscella- 
neous purposes. 

Nearly  three-fourths  of  the  county  officers  who  replied  to  in- 
quiries as  to  the  value  of  town  meetings  reported  that  they  were  no 
longer  of  any  substantial  service,  and  many  urged  their  abolition. 
It  may  be  noted  that  the  few  cases  where  the  town  meetings  were 
fairly  well  attended  and  where  opinion  in  their  favor  was  most  pro- 
nounced were  mainly  from  counties  in  the  central  part  of  the  state, 
and  not  from  the  northern  counties  where  New  England  influences 
have  been  most  prevalent.  In  some  instances  at  least,  the  larger  at- 
tendance at  such  places  seems  have  been  due  to  local  social  customs 
rather  than  to  interest  in  public  affairs.  In  one  town,  the  ladies  serve 
dinner  and  supper  at  the  town  meeting,  and  this  brings  a considerable 
number  from  the  country. 

The  number  of  elective  town  officers  has  been  decreased  by  the 
recent  abolition  of  the  town  collector  and  the  reduction  in  the  number 
of  highway  commissioners  from  three  to  one.  There  remain,  however, 
to  be  elected  in  each  town  a supervisor,  town  clerk,  assessor,  highway 
commissioner  and  from  two  to  five  justices  of  the  peace  and  con- 
stables. In  addition,  assistant  supervisors  are  elected  in  the  more 
populous  towns.  Justices  of  the  peace  and  constables  are  elected  for 
four-year  terms ; the  other  town  officials  are  chosen  for  two-year 
terms ; but  some  officers  are  elected  each  year.  Primary  elections 
are  not  required  for  town  officers ; and  nominations  are  usually  made 
at  unregulated  caucuses. 

The  supervisor  is  considered  in  some  degree  as  the  chief  officer  of 
the  town ; but  he  does  not  have  the  usual  powers  of  a chief  executive. 
He  acts  as  town  and  road  treasurer,  and  in  most  towns  as  overseer 
of  the  poor.  The  supervisor  and  assistant  supervisors  are  members 
of  the  county  board. 

The  town  clerk  keeps  records  of  town  meetings,  the  board  of 
town  auditors  and  highway  commissioner,  and  certifies  tax  levies  to 
the  county  authorities.  The  assessor  makes  the  assessment  of  prop- 
erty for  taxation.  The  highway  commissioner  has  charge  of  town 
roads  and  bridges. 

For  each  town  there  is  a board  of  town  auditors,  consisting  of 
the  .supervisor,  town  clerk  and  justices  of  the  peace;  and  a board  of 
health,  consisting  of  the  supervisor,  assessor  and  town  clerk. 

In  some  cities  town  government  has  been  largely  abolished.  By 
Act  of  1877  any  city  may  be  separately  organized  as  a town.  In 
such  cases,  the  powers  of  the  town  are  mainly  exercised  by  the  city 
council,  except  the  appointment  of  poor  master ; and  the  city  council 
may  unite  certain  town  and  city  officers.  By  an  optional  act  of  1901 
(adopted  by  Chicago  and  Springfield)  the  powers  of  townships  and 


1027 


* town  officers  in  townships  lying  wholly  within  any  city  of  more  than 
50,000  population  may  be  exercised  by  county  officers. 

In.  counties  not  under  township  organization,  road  districts  are 
established,  in  each  of  which  there  is  elected  a highway  commissioner 
and  district  clerk;  and  in  such  counties  justices  of  the  peace  and  con- 
stables are  elected  by  election  precincts.  The  main  differences  be- 
tween the  two  classes  of  counties  are  in  the  offices  of  supervisor  and 
assessor  and  the  town  boards.  The  abolition  of  town  assessors  has 
been  strongly  urged  for  many  years.  If  this  was  done,  and  smaller 
county  boards  were  established  in  place  of  the  boards  of  supervisors, 
there  would  be  almost  nothing  left  of  town  government. 


Tax  Administration.  The  assessment  of  property  for  state 
and  local  taxation  in  Illinois  is  made  by  county  officers  in  the  17 
counties  not  under  township  organization,  and  by  joint  action  of  county 
officers  and  town  assessors  in  the  85  counties  under  township  or- 
ganization. There  have  been  long  continued  complaints  of  under- 
valuation and  inequalities  in  the  assessments  under  the  present  system ; 
and  the  revenue  commission  of  1886  and  the  special  tax  commission  of 
1910  recommended  the  abolition  of  town  assessors,  and  that  assess- 
ments be  made  by  county  assessors. 

Taxes  are  levied  by  the  various  state  and  local  authorities  under 
a numerous  and  complicated  series  of  statutes ; while  a limitation  on 
the  total  amount  of  local  taxes  is  attempted  by  the  intricate  pro- 
visions of  the  Juul  law.  The  present  arrangements  are  confusing 
and  lead  at  times  to  the  extension  of  invalid  levies  and  to  litigation. 
There  is  need  for  a simpler  and  more  concentrated  responsibility  for 
making  tax  levies  and  for  limiting  the  aggregate  of  local  taxes. 

The  collection  of  taxes  in  counties  under  township  organization 
is  now  vested  in  the  county  treasurer ; and  in  counties  not  under  town- 
ship organization  the  sheriff  is  district  and  county  collector. 


Road  administration.  The  revised  road  and  bridge  law  of 
1913  and  later  amendments  have  established  a simpler  and  more  ef- 
fective system  of  local  highway  administration.  Formerly  there  were 
two  general  laws,  one  for  counties  under  township  organization  and 
another  for  counties  not  under  township  organization,  with  a number 
of  optional  provisions  in  each  law. 

Under  the  present  law,  there  is  a single  highway  commissioner 
elected  in  each  town  and  road  district  (except  in  towns  within  or 
wholly  included  in  a city  or  village),  who  has  charge  of  laying  out, 
constructing  and  repairing  local  roads,  and  who  prepares  the  poll  tax 
list,  and  determines  and  certifies  to  the  county  board  the  amount  neces- 
sary to  be  raised  by  taxation  for  the  construction,  maintenance  and  re- 
pair of  roads  and  bridges  in  the  town  or  road  district. 


1028 


The  county  superintendent  of  highways  has  charge  of  the  con- 
struction and  maintenance  of  roads  and  bridges  from  county  funds ; 
visits  and  inspects  roads  and  bridges  in  each  town  or  road 
district,  and  advises  and  directs  the  highway  commissioners ; and 
supervises  the  repair  and  maintenance  of  state  aid  roads. 

The  State  Department  of  Public  Works  and  Buildings,  acting 
through  the  Superintendent  of  Highways,  has  general  supervision  and 
control  of  the  construction  of  state  aid  roads. 

Expenditures  on  public  highways  have  increased  rapidly,  espec- 
ially in  recent  years.  The  local  road  and  bridge  taxes  have  risen  from 
$1,259,851  in  1879  to  $9,646,000  in  1917;  and  in  addition  large  sums 
have  been  expended  on  roads  and  bridges  from  county  taxes  and  bond 
issues,  and  from  the  state  road  funds.  A $60,000,000  state  bond  issue 
for  a general  system  of  state  roads  has  been  authorized. 


Justices  and  constables.  Justices  of  the  peace  and  constables 
are  elected  by  towns  and  election  precincts  throughout  the  state,  except 
in  the  city  of  Chicago.  In  Chicago,  there  is  a municipal  court ; in  27 
other  cities  there  are  city  courts  with  elected  judges;1  and  in  many 
other  cities  and  villages  there  are  elected  police  magistrates. 

Justices  of  the  peace  are  commissioned  by  the  governor.  They 
have  both  civil  and  criminal  jurisdiction  within  their  respective  counties 
in  an  enumerated  and  limited  list  of  cases  under  state  laws,  and  in 
cases  under  municipal  ordinances.  Under  the  criminal  code,  they  are 
conservators  of  the  peace;  and  on  complaint  they  may  issue  warrants 
for  arrest  in  any  criminal  case,  conduct  preliminary  examinations  of 
accused  persons,  and  release  them  on  bail  or  commit  for  trial.  They  are 
also  authorized  to  celebrate  marriages.  In  counties  under  township  or- 
ganization, they  are  members  of  the  board  of  town  auditors ; and  in 
counties  not  under  township  organization  a justice  of  the  peace  in  each 
precinct  may  be  designated  by  the  county  board  as  overseer  of  the  poor. 

Constables  are  peace  officers,  with  power  to  arrest  any  one  com- 
mitting crime  in  their  presence.  But  to  a large  extent  they  act  as  the 
ministerial  agents  of  the  justices,  serving  warrants  of  arrest  and  sub- 
poenas on  witnesses,  and  execute  judgments. 

There  are  no  public  records  or  effective  supervision  over  justices 
of  the  peace  and  police  magistrates ; and  under  the  fee  system  which 
prevails  there  is  room  for  mismanagement. 

Criticism  of  the  justices  of  the  peace  in  Chicago  led  to  the  adop- 
tion of  the  provision  in  the  constitutional  amendment  of  1904  author- 
izing their  abolition ; and  this  was  done  when  the  municipal  court  of 
Chicago  was  established.  But  in  other  cities  and  villages  with  city 
courts  or  police  magistrates,  the  justices  of  the  peace  and  constables 
must  also  be  continued.  The  constitutional  provisions  might  be  modi- 
fied so  that  the  work  of  the  justices  of  the  peace  and  constables  could 

1 The  city  courts  have  the  same  jurisdiction  as  circuit  courts,  and  do  not 
replace  the  justices  of  the  peace. 


1029 


be  combined  with  that  of  other  local  courts  and  the  police,  and  the 
provision  requiring  their  election  be  eliminated.2 


School  administration.  Public  school  administration  is  more 
systematically  organized  than  any  other  branch  of  public  administra- 
tion. But  the  present  arrangements  are  highly  complex,  involving 
state,  county,  township,  school  district  and  high  school  district  officials. 

Local  administration  is  primarily  based  on  the  petty  school  district, 
each  of  which  outside  of  cities  and.  some  villages  has  a single  school ; 
but  the  district  officials  are  subject  to  township,  county  and  state  offi- 
cers. 

There  are  three  main  classes  of  local  school  districts.  In  each 
school  district  with  less  than  1,000  inhabitants,  there  is  a board  of  di- 
rectors of  three  members,  one  of  whom  is  elected  annually  on  the  third 
Tuesday  in  April,  for  a term  of  three  years.  In  school  districts  having 
a population  of  not  less  than  1,000  and  not  more  than  100,000,  there 
is  a board  of  education  consisting  of  a president  elected  annually,  and  a 
minimum  of  six  members,  one-third  elected  each  year  for  terms  of 
three  years.  Three  members  are  added  for  each  additional  10', 000  pop- 
ulation, up  to  a maximum  of  fifteen  members.  In  cities  with  a popula- 
tion of  over  100,000  (Chicago)  the  board  of  education  consists  of  11 
members,  appointed  by  the  mayor  with  the  advice  and  consent  of  the 
council.  In  a number  of  cities,  local  school  boards  are  still  organized 
under  special  acts  passed  before  1870. 

Local  school  districts  are  usually  parts  of  school  townships ; but 
in  a good  many  cases  school  districts  cross  township  and  sometimes 
county  lines.  In  many  cases  school  districts  correspond  more  or  less 
closely  in  area  to  cities  and  villages ; but  the  boundaries  of  the  school 
district  and  city  or  village  do  not  necessarily  correspond ; and  very 
frequently  school  districts  include  considerable  territory  outside  of  the 
city  or  village ; while  in  other  cases  cities  and  villages  of  considerable 
population  are  in  two  or  more  school  districts. 

In  any  case  the  school  district  and  the  school  board  are  govern- 
ing bodies  distinct  from  the  city  or  village  corporation. 

In  1918  there  were  11,899  local  school  districts  in  Illinois.  Of 
these  11,252  were  small  school  districts  governed  by  boards  of  school 
directors,  619  districts  had  boards  of  education  (including  high  school 
districts),  and  28  were  under  special  charters. 

In  addition  to  the  usual  local  school  districts,  several  hundred  of 
which  (mainly  city  districts)  maintain  public  high  schools,  there  has 
been  a further  development,  under  recent  legislation  of  special  high 
school  districts  for  the  maintenance  of  high  schools.  Under  an  act  of 
1905  authorizing'  any  school  township  to  establish  a township  high 
school,  about  100  such  high  schools  were  established.  In  order  to  ex- 
tend the  opportunities  for  high  schools,  an  act  was  passed  in  1911  to 
authorize  the  organization  of  high  school  districts  composed  either  of 
a school  towiuhip  containing  a school  district  with  a population  of 


2 See  Bulletin  No.  10,  on  the  Judicial  Department. 


1030 


1 ,000  or  any  contiguous  and  compact  territory  in  the  same  or  different 
townships,  upon  petition  and  a local  vote  in  the  proposed  district. 
Under  this  act,  nearly  200  districts  were  formed ; and  the  school  report 
for  19]  6 showed  166  township  high  school  boards  in  operation.  At 
the  October  1916,  term  of  the  Supreme  Court,  this  act  was  held  un- 
constitutional (as  special  legislation  based  on  an  improper  classifica- 
tion), as  was  also  an  act  of  1915  providing  for  the  payment  from  the 
state  school  fund  of  high  school  tuition  for  pupils  from  districts  with 
no  high  schools. 

An  act  of  1917  validated  the  organization  of  high  school  districts 
under  the  earlier  acts;  and  another  act  of  the  same  year,  framed  to 
meet  the  objections  of  the  Supreme  Court,  made  further 
provisions  for  the  formation  of  community  high  school  dis- 
tricts, and  also  for  the  formation  of  non-high  school  dis- 
tricts comprising  the  part  of  each  county  not  included  in 
school  districts  maintaining  high  schools.  There  are  irregular  varia- 
tions in  the  composition  of  the  boards  of  education  provided  under  these 
different  provisions.  For  districts  organized  under  the  previous  acts, 
the  high  school  board  consists  of  a president  and  six  members  elected 
for  three  year  terms ; for  the  new  community  high  school  districts,  the 
boards  consist  of  only  five  members ; and  for  the  non-high  school  dis- 
trict of  three  members,  one  to  be  elected  each  year,  with  the  county 
superintendent  as  a member  and  secretary  without  vote,  this  board  to 
levy  taxes  and  pay  expenses  for  high  school  tuition  for  pupils  from  the 
non-high  school  district.  In  1918  there  were  176  township  high  schools 
and  2 community  high  schools. 

Each  congressional  township  is  established  as  a school  township 
in  each  of  which  there  are  elected  annually  three  school  trustees.  The 
school  trustees  establish  and  change  the  boundaries  of  school  districts, 
appropriate  and  distribute  to  the  school  districts  the  income  of  town- 
ship school  funds  and  the  state  school  fund,  and  elect  a township  treas- 
urer. In  school  townships  whose  boundaries  coincide  with  the  bound- 
aries of  civil  towns,  the  school  trustees  are  elected  at  the  same  time  as 
other  town  officers ; but  in  the  many  cases  where  the  school  and  civil 
townships  are  not  coterminous,  the  election  for  school  trustees  is  held 
on  the  second  Saturday  in  April. 

The  adoption  of  the  township  in  place  of  the  small  school  district 
as  the  primary  unit  of  local  school  administration  was  urged  by  the 
Education  Commission  of  1911,  as  a means  of  increased  economy  and 
efficiency  in  the  public  school  system.  If  this  were  done  the  school 
township,  with  one  school  authority,  could  take  the  place  of  a number 
of  districts  with  separate  boards  of  school  trustees  and  school  district 
directors  and,  in  many  places,  an  additional  high  school  board  of  edu- 
cation. School  funds  could  be  more  economically  managed  by  the 
county  authorities  for  all  the  school  townships  in  each  county. 


Drainage  districts.  The  drainage  laws  of  Illinois  present  a 
highly  complex  and  confusing  body  of  legislation.  The  constitution  of 
1870  contained  a provision  (article  IV,  section  31)  that: 


1031 


“The  general  assembly  may  pass  laws  permitting  the  owners  or 
occupants  of  lands,  to  construct  drains  and  ditches  for  agricultural 
and  sanitary  purposes  across  the  lands  of  others.” 

In  1871  an  act  was  passed  “to  provide  for  the  construction  and 
protection  of  drains,  ditches,  levees  and  other  works.”  But  some  years 
later,  it  was  held  that  section  9 of  article  IX,  authorizing  special  assess- 
ments and  special  taxation  for  local  improvements,  limited  the  use  of 
these  methods  to  cities,  towns  and  villages,  and  that  special  assessments 
could  not  be  used  for  drainage  works  by  other  local  authorities.3 

This  decision  led  to  the  adoption  of  a constitutional  amendment 
in  1878,  adding  to  section  31  of  article  IV,  the  following: 

“and  provide  for  the  organization  of  drainage  districts  and  vest 
the  corporate  authorities  thereof  with  power  to  construct  and  maintain 
levees,  drains  and  ditches,  and  to  keep  in  repair  all  drains,  ditches  and 
levees  heretofore  constructed  under  the  laws  of  this  state,  by  special 
assessments  upon  the  property  benefited  thereby.” 

Following  the  adoption  of  this  amendment,  another  drainage  law 
was  passed,  in  1879,  repealing  the  law  of  1871.  In  1883  an  act  relating 
to  county  ditches  and  drains  was  passed.  In  1885,  an  act  was  passed 
authorizing  cities  and  villages  to  construct  drains,  etc.,  by  special 
assessment,  and  another  to  provide  for  drainage  for  agricultural  and 
sanitary  purposes.  A number  of  acts  have  also  been  passed  for  the 
creation  of  sanitary  districts.  These  laws  have  been  frequently 
amended,  and  also  supplemented  by  other  legislation. 

Under  the  act  of  1879,  drainage  districts  may  be  formed  on  peti- 
tion and  proceedings  in  the  county  court ; and  when  any  petition  is 
approved,  the  court  appoints  three  commissioners  for  terms  of  three 
years,  to  lay  out  and  construct  the  proposed  works,  subject  to  further 
proceedings  before  the  court  on  the  report  and  assessment  roll  pre- 
pared by  the  commissioners. 

Under  the  act  of  1885,  the  town  highway  commissioners  are  con- 
stituted drainage  commissioners  for  all  drainage  districts  in  their  re- 
spective towns ; and  provision  is  made  for  the  organization  of  drainage 
districts  on  petition  and  proceedings  before  such  drainage  commis- 
sioners, with  district  commissioners  to  be  elected,  (for  three-year 
terms),  by  the  adult  owners  of  land  in  the  district.  In  connection  with 
special  assessments,  appeals  may  be  taken  to  the  county  court.  Pro- 
vision is  also  made  for  sub-districts,  river  districts,  districts  by  user, 
and  districts  by  mutual  agreement;  and  also  for  establishing  special 
drainage  districts,  lying  in  several  towns  or  counties,  on  proceedings 
before  the  county  courts. 

These  two  laws  appear  to  have  been  prepared  primarily  with 
reference  to  drainage  for  agricultural  purposes,  though  sanitary  pur- 
poses are  also  included.  The  laws  relating  to  sanitary  districts  have 
had  in  view  primarily  the  problem  of  sewage  disposal  for  urban  com- 
munities, although  also  including  other  objects.  An  act  of  1887  pro- 
vided for  organizing  the  city  of  Chicago  into  a drainage  district;  but 
the  sanitary  district  of  Chicago  was  organized  under  an  act  of  1889 
general  in  form,  providing  for  sanitary  districts.  Another  act,  of  1907, 


Updike  v.  Wright,  81  111.  49  (1876). 


1032 


to  create  sanitary  districts  in  certain  localities,  was  designed  for  the 
region  including  East  St.  Louis,  where  the  East  Side  Levee  district 
has  been  organized.  The  act  of  1917  to  create  sanitary  districts  and 
to  provide  for  sewage  disposal  had  in  view  the  problems  of  Decatur 
and  Bloomington ; but  is  also  adapted  to  other  localities.  All  of  these 
acts  provide  for  the  creation  of  special  districts  on  petition  and  a local 
popular  vote;  and  have  been  used  for  the  formation  of  districts  in- 
cluding one  or  more  urban  municipalities  and  surrounding  territory. 
The  acts  of  1889  and  1907  provide  for  the  popular  election  of  trustees; 
that  of  1917  provides  for  the  appointment  of  trustees  by  the  county 
judge. 

The  laws  relating  to  drainage  and  sanitary  districts  make  no  pro- 
vision for  any  report  to  any  state  officer  of  the  formation  of  such 
districts ; and  no  official  records  are  available  in  any  state  office  of 
the  districts  formed  or  in  operation.  The  county  records  should  show 
the  formation  of  sanitary  districts,  and  of  drainage  districts  organized 
under  the  act  of  1879 ; but  many  of  the  districts  formed  under  the  act 
of  1885  are  established  by  proceedings  before  town  officers ; and  the 
only  record  provided  for  is  that  of  the  town  officers.  As  a result,  there 
is  no  complete  list  of  such  districts. 

An  investigation  by  the  Rivers  and  Lakes  Commission  in  1911 
disclosed  the  existence  of  782  drainage  districts  in  the  state.  ’ But 
this  may  not  have  been  complete ; and  in  any  case  does  not  indicate 
the  total  number  of  districts  now  in  existence.  Districts  were  re- 
ported in  81  counties  in  all  parts  of  the  state,  the  largest  number  in 
one  county  being  48  in  Champaign  county.  The  aggregate  area  of 
these  districts  was  about  12,000  square  miles,  or  a little  more  than  a 
fifth  of  the  total  area  in  the  state. 

Next  to  the  Sanitary  District  of  Chicago,  the  largest  drainage  dis- 
trict reported  was  the  Lower  Salt  Fork  Drainage  District  in  Cham- 
paign County,  with  an  area  of  168,000  acres  and  23  miles  of  ditch. 
The  Sny  Island  Levee  and  Drainage  District  in  Adams,  Pike  and  Cal- 
houn counties  had  an  area  of  110,000  acres  and  55  miles  of  levee. 
The  East  Side  Levee  and  Drainage  District  (organized  under  the  act 
of  1907),  in  St.  Clair  and  Madison  counties  had  55,000  acres,  30  miles 
of  levee  and  20  miles  of  canal.4 

Serious  complaints  have  been  made  of  the  confused  -state  of  the 
drainage  laws,  and  the  numerous  drainage  districts,  mostly  dealing  with 
small  disconnected  areas  and  often  with  antagonistic  authorities  in  the 
same  watershed.  The  Rivers  and  Lakes  Commission  urged  the  need 
for  comprehensive  plans  for  entire  watercourses,  so  as  to  secure  better 
flood  control  and  more  effective  regulation.5 


Cities  and  villages.  Incorporated  towns  and  cities  were  first 
organized  under  special  acts  of  the  General  Assembly.  A general  law 
for  the  incorporation  of  towns  was  passed  in  1831,  under  which  many 

4 Randolph,  Robert  Isham:  Land  Drainage  in  Illinois,  Rivers  and  Lakes 

Commission,  Bulletin  No.  4,  April  1,  1912. 

c Rivers  and  Lakes  Commission,  Annual  Report  for  1916,  p.  16. 


1033 


towns  were  organized;  but  much  special  legislation  for  towns  contin- 
ued, and  until  1870  city  government  was  regulated  mainly  by  special 
charters. 

After  the  prohibition  of  special  legislation  for  cities,  towns  and 
villages,  in  the  constitution  of  1870,  a general  cities  and  villages  law 
was  enacted  in  1872.  Most  of  the  previously  existing  cities  and  incor- 
porated towns  have  reincorporated  under  the  act  of  1872  (335  to 
1917)  ; and  763  new  cities  and  villages  have  been  incorporated  under 
this  act.  There  are  still,  however,  a few  cities  and  a number  of  in- 
corporated towns  and  villages  operating  under  special  laws  passed 
before  1870 ; and  in  other  places  provisions  of  special  charters  relating 
to  schools  are  still  in  force. 

Under  the  general  provisions  of  the  Cities  and  Villages  act,  the 
city  government  consists  of  a mayor,  city  clerk,  and  treasurer,  and 
from  6 to  70  aldermen,  elected  for  two  year  terms,  one  of  the  two 
aldermen  from  each  ward  being  elected  each  year.  The  city  attorney 
is  provided  for  by  statute,  but  is  now  appointed.  In  villages  there 
is  a president  elected  annually,  and  six  trustees,  three  elected  each 
year  for  two-year  terms.  Other  officers  are  provided  by  optional 
laws,  and  by  local  ordinances. 

An  act  of  1910  authorizes  cities  and  villages  to  adopt  the  commis- 
sion form  of  government,  under  which  cities  and  villages  which  adopt 
the  act  are  governed  by  a mayor  and  four  commissioners,  all  elected 
at  large  for  terms  of  four  years. 

The  Cities  and  Villages  act  of  1872  has  been  freely  amended  and 
supplemented  by  later  legislation.  Some  of  this  later  legislation  applies 
to  all  cities,  villages  and  incorporated  towns.  Other  acts  apply  to  all 
cities  and  villages  which  have  adopted  the  general  law.  Still  other  acts 
apply  only  to  certain  classes  of  cities  and  villages  (usually  within  cer- 
tain population  limits),  or  to  cities  and  villages  which  adopt  them. 
Since  the  adoption  of  the  constitutional  amendment  of  1904  authoriz- 
ing special  legislation  for  Chicago,  subject  to  a local  referendum,  a 
number  of  special  acts  for  Chicago  have  been  passed  and  approved  by 
the  local  voters. 

Legislation  on  city  and  village  government  now  forms  a large 
and  complex  volume  of  statutes;  and  every  session  of  the  General 
Assembly  results  in  the  addition  of  a considerable  amount.  Laws  re- 
lating directly  to  cities  and  villages  form  more  than  300  pages  in 
Hurd’s  Statutes ; and  other  laws  on  municipal  affairs  applying  mainly 
to  city  and  village  communities  bring  the  total  to  about  500  pages.6 

Mention  may  be  made  of  the  acts  relating  to  public  libraries 
which  provide  for  boards  of  library  trustees  (elected  in  cities 
and  appointed  in  villages),  which  have  control  over  the  libraries 
and  their  funds,  and  are  substantially  independent  of  the  city  and 
village  government. 


Park  districts.  Three  park  districts  were  created  in  Cook 
County  by  special  legislation  before  1870 ; and  a considerable 


6 See  Bulletin  No.  6.  on  Municipal  Home  Rule. 


1034 


amount  of  later  legislation  has  been  passed  applying  only  to  these 
districts.  Two  general  and  optional  laws  for  the  organization  of 
park  districts  were  passed  in  1893  and  1895,  under  which  a number 
of  such  districts  have  been  organized  in  different  parts  of  the 
state.  Additional  park  legislation  has  also  been  passed  for  cer- 
tain classes  of  cities  in  1899  and  1907  , and  (in  1911)  for  town  and 
township  parks  and  forest  preserve  districts. 

Under  the  act  of  1893  provision  is  made  for  the  organization 
of  pleasure  driveway  and  paik  districts  in  any  area  of  contiguous 
territory  containing  two  or  more  incorporated  cities,  towns  or 
villages,  and  lying  wholly  within  the  same  or  adjoining  townships, 
on  petition  and  after  an  election  ordered  by  the  county  judge.  In 
each  of  such  districts  a president  and  six  trustees  are  elected  for 
terms  of  two  years,  one-half  of  the  trustees  each  year.  The  act 
of  1895  provides  for  organizing  as  park  districts  any  territory 
in  the  same  county  or  in  two  adjoining  counties  under  township 
organization,  on  petition  and  after  an  election.  In  each  district 
organized  under  this  act,  there  are  five  commissioners  elected,  one 
each  year  for  a term  of  five  years. 

Under  these  laws  park  districts  have  been  organized  for  East 
St.  Louis,  Peoria,  Springfield,  Rockford  and  a number  of  other 
cities  in  different  parts  of  the  State.  In  Cook  County,  26  such  park 
districts  have  been  organized  in  addition  to  the  three  large  park 
districts  established  by  special  legislation, — 14  within  the  city  of 
Chicago,  and  12  for  cities  and  villages  outside  of  Chicago.  A for- 
est preserve  district  has  been  formed  comprising  the  whole  of 
Cook  County  for  which  the  board  of  county  commissioners  is  ex- 
officio  the  board  of  forest  preserve  commissioners. 

Questions  as  to  the  exact  legal  status  of  park  districts  have 
been  brought  up  in  a number  of  cases  before  the  courts ; and  have 
led  to  a number  of  judicial  decisions,  under  which  they  are  given 
a peculiar  position.  Under  the  general  park  laws  and  some  of  the 
special  acts,  park  boards  are  given  powers  of  local  taxation ; and 
are  classed  as  corporate  authorities,  as  only  the  corporate  authorities 
of  a municipal  corporation  may  levy  taxes  for  corporate  purposes. 
It  has  been  held  that  by  the  phrase  “corporate  authorities,”  must 
be  understood  as,  “those  municipal  officers  who  are  either  directly 
elected  by”  the  population  of  the  district,  “or  appointed  in  some 
mode  to  which  they  have  given  their  assent.”  Under  this  rule, 
an  act  providing  for  the  appointment  of  a park  board  by  the  gover- 
nor has  been  sustained,  when  the  people  of  the  park  district  had 
voted  in  favor  of  adopting  the  act.  But  where  an  act  providing 
for  the  appointment  of  a park  board  by  the  circuit  judges  had  been 
adopted  by  the  proposed  park  district,  a later  act  providing  for 
appointment  by  the  governor,  which  was  not  submitted  to  the 
people  subject  to  taxation,  was  held  void.7  The  Lincoln  Park 
Board  in  Chicago  does  not,  however,  have  the  power  of  taxation ; 

7 People  v.  Salomon,  51  111.  37  (1869);  Harward  v.  St.  Clair  Drainage  Co., 
51  111.,  130  (1869);  Cornell  v.  People,  107  111.  372  (1883);  People  v.  Block,  276 
111.  286  (1916). 


1035 


and  park  taxes  for  this  district  are  levied  by  the  taxing  authorities 
of  the  towns  included  in  the  district. 

As  already  noted,  it  has  been  held  that  under  the  constitution 
of  1870  only  the  corporate  authorities  of  cities,  towns  and  villages 
could  make  local  improvements  by  special  assessment  or  special 
taxation,  and  that  drainage  districts,  not  being  included,  could  not 
use  these  methods  of  paying  for  local  improvements  until  specifi- 
cally authorized  by  the  constitution.  But  it  has  been  held  that 
park  commissioners  may  be  vested  with  authority  to  make  such 
improvements  by  .special  assessment  or  special  taxation,  on  the 
ground  that  they  are  corporate  authorities  of  the  cities,  towns  or 
villages  in  which  the  park  districts  are  located.8 


Public  health  districts.  An  act  of  1917  provides  for  the  or- 
ganization of  public  health  districts  composed  of  one  or  more 
towns  or  road  districts,  on  petition  and  local  election.  No  addi- 
tional officers  are  elected  for  such  districts ; but  the  district  boards 
of  health  consist  of  existing  officials,  the  county  board  for  dis- 
tricts in  counties  not  under  township  organization ; the  supervisor, 
assessor  and  clerk  for  districts  composed  of  a single  town ; and 
the  chairman  of  the  county  board  with  the  supervisors  of  towns 
and  clerks  of  road  districts  when  the  district  comprises  two  or 
more  towns  and  road  districts. 

The  district  boards  of  health  are  authorized  to  appoint  dis- 
trict health  officers,  from  those  held  to  be  competent  by  the  state 
board  of  health,  and  also  to  appoint  public  health  nurses,  and  to 
provide  necessary  health  measures,  and  to  levy  a tax  for  such 
purposes. 

Only  one  public  health  district  appears  to  have  been  organized 
— for  La  Salle,  Peru  and  Oglesby,  in  La  Salle  County. 


Complexity  of  local  government.  As  a result  of  the  numerous 
different  types  of  local  districts  provided  for  by  the  constitution 
and  statutes,  and  the  still  more  numerous  and  detailed  laws  re- 
lating to  them,  the  machinery  of  local  government  in  Illinois  pre- 
sents a highly  intricate  and  complicated  network  of  local  areas  and 
authorities,  more  confusing  than  in  any  other  state.  It  is  true 
that  not  all  of  the  different  kinds  of  districts  are  to  be  found  cover- 
ing all  the  territory  of  the  state.  The  more  complex  arrangements 
are  to  be  found  in  the  urban  communities ; and  among  these  the 
conditions  are  most  confusing  in  the  larger  communities.  But  even 
outside  of  the  urban  communities  the  situation  is  far  from  simple. 

8 Dunham  v.  People.  96  111.  331  (1880);  West  Chicago  Park  Commissioners 
v.  W.  U.  Tel.  Co.  103  111.  33  (1882);  West  Chicago  Park  Comrs.  v.  Sweet, 
167  111.  326  (1897):  West  Chicago  Park  Comrs.  v.  Farber.  171  111.  146  (1898); 
Van  Nada  v.  Goedde,  263  111.  105  (1914). 


1036 


Conditions  in  Chicago  and  Cook  county  present  the  maximum 
degree  of  complexity  and  confusion ; and  these  are  described  in 
some  detail  in  Bulletin  No.  11.  As  an  illustration  of  conditions 
in  other  parts  of  the  state,  attention  may  be  called  to  the  group 
of  local  agencies  for  the  region  including  East  St.  Louis  and  its 
neighborhood,  which  has  been  combined  for  sanitary  and  drainage 
purposes  into  the  East  Side  Levee  and  Sanitary  District,  organized 
under  an  act  of  1907. 

The  East  Side  Levee  District  includes  parts  of  two  counties, — 
St.  Clair  and  Madison.  Within  its  limits  are  the  whole  or  part  of 
nine  townships,  (four  in  St.  Clair  county  and  five  in  Madison 
county)';  the  cities  of  East  St.  Louis,  Venice  and  Granite  City; 
the  East  St.  Louis  Park  District;  several  villages  and  also  school 
districts.  The  total  population  of  the  levee  district  is  estimated  at 
about  150,000.  The  total  assessed  valuation  is  $24,623,162,  of  which 
about  three- fourths  is  in  St.  Clair  county  and  five-eighths  in  the 
city  of  East  St.  Louis. 

Somewhat  similar  conditions  are  to  be  found  in  other  parts  of 
the  state,  where  there  are  several  urban  municipalities  in  close 
proximity  to  each  other, — as  Rock  Island  and  Moline,  Champaign 
and  Urbana,  and  LaSalle  and  Peru. 

The  problem  of  local  government  for  such  communities,  and 
also  for  many  other  localities  where  the  present  situation  is  only 
slightly  less  complex,  could  be  more  effectively  dealt  with  through 
a more  unified  and  simpler  machinery. 

One  result  of  the  existing  situation  is  the  enormous  burden 
placed  on  the  voters  in  selecting  the  large  number  of  officials  for 
the  numerous  governing  bodies.  A large  number  of  elective  county 
officials  are  required  by  the  state  constitution,  and  others  have 
been  added  by  statute ; and  these  are  elected  at  the  general 
elections  in  November  of  even  years,  at  the  same  time  as  state  offi- 
cials, members  of  Congress  and  (at  presidential  elections)  presi- 
dential electors.  From  35  to  70  officials  are  elected  at  one  time; 
and  the  ballots  often  contain  the  names  of  200  candidates  in  down 
state  counties  and  more  than  400  candidates  in  Cook  county.9 

For  other  local  districts,  the  number  of  officials  to  be  elected 
for  each  governing  body  at  one  time  is  not  so  large ; and  as  the 
elections  for  the  different  local  districts  are  held  at  different  times, 
the  total  number  to  be  voted  for  at  one  election  is  in  most  cases 
a good  deal  less  than  at  the  November  elections.  But  this  is  se- 
cured by  multiplying  the  number  of  separate  local  elections ; and 
these  spring  elections  are  so  many  as  to  impose  a serious  burden 
on  the  conscientious  voter.  There  are  seven  regular  local  elections 
each  year  in  the  spring  months,  and  in  years  when  circuit  or  su- 
preme court  judges  are  elected  there  are  eight  elections  within 
five  months,  as  follows : 

Primary  election,  in  cities.  February. 

Drainage  district  elections,  March. 

Township  primary.  (No  time  fixed  by  law). 


0 See  Bulletin  No.  5,  on  the  Short  Ballot. 


1037 


Town  and  road  district  election,  April,  first  Tuesday. 

School  Trustees  election,  April,  second  Saturday. 

City  and  Village  elections,  April,  first  or  third  Tuesday. 

School  directors  and  Boards  of  Education,  April,  third  Satur- 
day. 

Supreme  and  circuit  court  judges,  election,  June. 

These  are  in  addition  to  the  general  state  primaries  and  elec- 
tions in  September  and  November  every  second  year  and  the  presi- 
dential primaries  in  April  every  fourth  year. 


Local  finances.  Something  of  the  importance  of  local  govern- 
ment as  a whole,  and  of  the  relative  importance  of  different  local 
authorities,  may  be  indicated  by  a brief  examination  of  available 
data  as  to  local  finances.  The  scope  of  this  inquiry  is  necessarily 
limited  by  the  absence  of  adequate  official  public  records  of  local 
finances,  and  the  consequent  lack  of  anything  like  complete  infor- 
mation. The  table  below  presents  statistics  as  to  state  and  local 
taxes  levied  for  the  years  1872,  1880,  1890,  1900  and  1917. 

State  and  Local  Taxes  Levied .a 

1872  1880  1890  1900  1917 


State  Tax $ 3.947,014  $ 3,202,289  $ 2,974,240  $ 4,102,180  $23,632,489 

County  Taxes  5,168,667  4,649,734  4,737,649  6,179,195  17,406,132 

City  and  Village 

Taxes  1.400,656  5,615,292  12,325,827  10,972,543  31,630,860 

School  Taxes 19,227,721  48.912,393 

Township  Taxes 1,705,866 

Road  and  Bridge 

Taxes  2,780,890  9,646,272 

Drainage  Taxes 4.822,627 

Park  Taxes 6,366,328 

Reg.  Bond  Taxes 1,350,821  1,364,285  984,411  784,285 

All  Other  Taxes 9,305,282  9,715,189  12,589,705  5,994,988  3,702,632 


Total  $19,821,620  $24,533,326  $33,991,709  $50,240,931  $148,609,889 


a Compiled  from  Reports  of  the  Auditor  of  Public  Accounts.  Cents  are  dis- 
regarded. 

It  will  be  noted  that  in  1872,  local  taxes  were  about  four  times 
as  much  as  the  state  property  tax ; and  that  in  1900  while  the  state 
tax  was  but  little  more  than  in  1872,  local  taxes  had  nearly  trebled, 
and  were  more  than  eleven  times  the  state  tax.  Since  1900,  the  state 
tax  has  increased  rapidly,  and  at  a relatively  larger  late  than  local 
taxes ; but  the  local  taxes  had  again  nearly  trebled  in  1917,  and  were 
five  times  as  much  as  the  state  tax  in  that  year. 

County  taxes  showed  little  increase  to  1900,  but  since  then  have 
more  than  trebled.  For  other  local  taxes  the  data  is  not  given  sepa- 
rately for  the  earlier  years.  But  city^  and  village  taxes  have  increased 
rapidly,  and  trebled  from  1900  to  1917;  school  taxes  in  1917  were 
more  than  two  and  a half  times  as  much  as  in  1900,  and  form  the 
largest  item  in  the  list  of  taxes ; road  and  bridge  taxes  were  three  and 
a half  times  as  much  in  1917  as  in  1900.  Nearly  all  the  drainage  and 
park  taxes  are  reported  from  Cook  County. 


1038 


The  declining  importance  of  town  government  is  indicated  by 
the  comparatively  small  amount  of  township  taxes,  outside  of  the 
road  and  bridge  tax.  * 

The  data  as  to  tax  levies  is  practically  the  only  information  col- 
lected in  Illinois  as  to  local  finances,  except  as  to  schools.  The  various 
local  authorities  have  records  of  their  own  financial  transactions ; and 
a number  of  cities  and  counties  publish  financial  reports.  But  none 
of  these  give  complete  information  as  to  the  public  finances  of  all  the 
local  authorities  in  any  one  community;  while  the  great  majority  of 
local  governments  appear  to  make  no  public  reports  of  their*  finances. 

An  examination  of  local  county  records  in  two  counties  and  of 
town  records  in  one  county  for  a committee  of  the  General  Assembly 
in  1912,  disclosed  serious  deficiencies  in  the  methods  of  keeping 
local  financial  records  and  accounts,  which  probably  exist  in  most 
counties  in  the  state.  There  was  no  budget  system  nor  central  record 
of  all  the  financial  transactions  of  county  officers.  Separate  records 
were  kept  by  the  several  county  officers,  who  in  some  cases  paid  the 
expenses  of  their  offices  from  fees  collected,  and  only  the  balances, 
if  any,  were  paid  over  to  the  county  treasury.  The  accounts  kept  by 
the  separate  officers  were  the  most  primitive  system  of  cash  records, 
with  no  attempt  at  classification  of  expenditures,  or  any  balance  sheet 
of  assets  and  liabilities.  Nor  was  any  attempt  made  to  prepare 
general  statements  combining  the  records  of  the  various  county  offi- 
cials. The  records  of  town  officers  disclosed  not  only  the  absence  of 
any  system  of  accounts,  but  the  absence  of  the  most  essential  data  as 
to  cash  transactions,  and  frequent  errors  in  the  extension  of  figures. 

More  satisfactory  financial  accounts  and  reports  are  made  by 
some  of  the  larger  cities ; but  even  the  best  of  these  are  not  based  on 
any  uniform  plan  .so  that  comparisons  can  be  made  with  those  of  other 
cities. 

One  obstacle  to  a comprehensive  system  of  financial  records  is  the 
lack  of  a uniform  fiscal  year  even  for  county  business.  Supervisors 
are  elected  and  take  office  in  April,  but  their  fiscal  year  begins  Sep- 
tember 1;  while  other  county  officers  take  office  and  begin  their  fiscal 
year  on  December  1 . Most  cities  begin  their  fiscal  year  on  May  1 ; 
but  Chicago  and  some  others  begin  on  January  1.  School  accounts 
and  records  are  based  on  the  school  year  beginning  July  1. 

In  connection  with  the  more  systematic  supervision  of  local  school 
authorities  by  the  state  department  of  public  instruction  and  the 
county  superintendent  of  schools,  better  records  and  reports  of  school 
finances  are  prepared  than  of  any  other  branch  of  local  administration 
in  Illinois.  The  following  summary  of  the  accounts  of  school  dis- 
trict funds  for  1917-18  indicates  the  sort  of  data  that  should  be 
available  for  all  other  local  districts. 

School  District  Funds  1917-18 .a 

Balance,  July  1,  1917 311,832,103 

Receipts: 

Distribution  of  trustees $ 5.115,903 

District  Taxes  44,744,835 

Tuition  fees  paid  by  pupils 283,785 


1039 


School  District  Funds  1917-18? — Concluded. 


Sale  or  rent  of  school  property 235,935 

Sale  of  school  bonds 3,226,681 

Insurance  adjustments  345,480 

Other  sources  1,164,512  55,217,132 


Net  receipts  and  balances $67,049,235 

From  other  township  treasurers $451,687 

Transfers  of  pupils 700,795  1,152,482 


Grand  Total  $68,201,717 

Expenditures: 

General  Control  $ 1,294,537 

Instruction  29,001,198 

Operating-  school  plant 5,961,635 

Maintenance  of  plant 3,236,889 

Auxiliary  agencies  2,012,893 


Total  current  expenses $41,507,153 

Capital  outlay  ' 8,745,373 

Bonded  debt  2,351,044 


Net  expenditures  $52,603,570 

Paid  to  other  township  treasurers $498,86' 

Tuition  of  transferred  pupils 959,273  1,449,140 


Balance,  June  30,  1918 $14,149,006 

Grand  Total  $68,201,717 


a Illinois  School  Statistics,  1918,  pp.  4-5.  Cents  are  disregarded. 

In  the  absence  of  official  records  made  under  state  authority,  an 
attempt  is  made  by  the  United  States  Census  to  compile  statistics  as 
to  local  finances.  Annual  reports  are  published  for  cities  of  over 
30,000  population ; and  more  extensive  reports  once  in  ten  years  for 
counties  and  smaller  municipalities.  Even  the  latter  reports  do  not 
attempt  to  cover  all  the  local  authorities  in  the  smaller  communities ; 
and  the  data  for  the  authorities  from  whom  information  is 
secured  are  necessarily  incomplete,  on  account  of  the  deficiencies  in 
the  local  records.  The  following  summary  of  the  census  data  for 
1913,  in  the  last  report  on  Wealth,  Debt  and  Taxation,  is  presented, 
as  the  best  available  record  of  local  revenues  and  expenditures  in 
Illinois. 


County  and  Municipal  Finances  in  Illinois,  1913  a 


Revenues. 

General  Property  Taxes 

Special  Assessments  

Counties. 

$12,374,734 

Incorpor- 
ated places 
over  2,500. 

- $47,354,715 
10,556,578 
9,708,602 
2,535,434 
643,566 
3,894,097 
1,405,515 
1,248,560 
356,057 
1,725,829 
9,251,260 

Liquor  Licenses  

Business  taxes  and  licenses  ^ 

Fines,  forfeits  and  escheats 

19,225 

112,825 

Highway  Privileges  

Interests  and  Rents  

Subventions  and  Grants  

173,537 

Donations  and  Gifts 

Earnings  of  depts.  and  misc 

Public  Service  Enterprises 

3,193,444 

Total  Revenue  Receipts 

$15,873,765 

$88,680,213 

Sales  of  Investments,  etc 

Loans  

Trust  and  Agency  Transactions 

Counterbalancing  Transactions  

28,201 

55,897,271“ 

108,944 

$ 1,993,403 
39,924,613 
593,628 
681,165 
11,223,511 

General  Transfers  

14,353 

Total  non-revenue  receipts 

$59,324,639 

$54,416,320 

$143,096,533 

Total  Receipts  

1040 


County  and  Municipal  Finances  in  Illinois,  1913* — Concluded. 


Expenditures. 


Counties. 


Incorpor- 
ated places 
over  2,500. 


General  Government  

Protection  to  persons  and  property. 

Health  and  Sanitation 

Highways  

Charities,  Hospitals  and  corrections 

Schools  

Libraries  

Recreation  

Miscellaneous  


$7,122,644 

740,763 

53,970 

406,667 

4,106,733 

104,323 


3,786 

247,589 


$ 5,368,536 
13,375,024 
4,984,097 
4,963,566 
609,133 
16,840,018 
598,108 
3,118,997 
1,587,726 


Total  General  Depts. 


$12,846,375  $51,445,205 


Public  Service  Enterprises 

Interest  $ 487,831 

Outlays  , 1,828,437 


$ 5,246,371 
4,986,032 
25,685,928 


Total  Governmental  Cost  Payments 


$15,162,643  $87,363,536 


Purchase  of  Investments,  etc 

Redemption  of  Debt 

Trust  and  Agency  transactions 

Counterbalancing  transactions 

General  Transfers  


$ 2,993 

3,822,224 
5!5,S39,839b 
108,944 
14,353 


$11,305,008 

37,866,397 

442,567 

681,165 

6,252,969 


Total  non-governmental  cost  payments 59,788,353  $56,548,106 

Total  payments  $71,950,996  $143,911,642 

a U.  S.  Census  Report  on  Wealth,  Debt  and  Taxation, 
b Mainly  tax  collections  for  other  local  districts  and  for  the  state. 


1041 


IV.  LOCAL  GOVERNMENT  IN  OTHER  STATES. 


As  local  government  in  the  United  States  is  determined  by  the 
constitutions  and  laws  of  the  several  states,  there  are  many  variations 
in  the  organization  and  powers  of  the  local  authorities  of  the  different 
states.  But  there  are  certain  important  institutions  and  methods  which 
follow  the  same  general  ideas  in  most  of  the  states,  and  other  institu- 
tions which  are  similar  in  related  groups  of  states.  These  conditions 
are  due  to  the  fact  that  American  institutions  have  developed  from 
those  of  England,  to  the  constant  intercourse  between  the  various 
states,  and  to  the  conscious  and  unconscious  imitation  ar  d adaptation 
by  the  several  states  of  the  institutions  and  practices  of  other  states. 


Historical  development.  Some  features  of  the  English  system 
of  local  government  in  the  seventeenth  century  will  serve  to  explain 
the  beginnings  of  local  government  in  the  American  colonies.  At  that 
time  England  was  divided  into  counties  or  shires,  and  these  in  turn 
into  parishes ; while  there  were  still  survivals  of  older  divisions  of 
shires  known  as  hundreds ; and  scattered  throughout  the  country  were 
many  manors  and  boroughs,  with  special  arrangements  and  privileges. 

The  important  county  officials  were  the  lord  lieutenant,  the  sheriff, 
the  coroner,  and  justices  of  the  peace.  All  of  them,  except  the  coroner, 
were  appointed  by  the  Crown ; but  with  the  decline  of  the  active  con- 
trol of  the  Privy  Council,  local  administration  in  practice  was  much 
decentralized.  The  lord  lieutenant  was  head  of  the  militia  system. 
The  sheriff  was  chief  conservator  of  the  peace,  and  executive  agent 
of  the  centralized  judicial  courts.  Local  affairs  were  mainly  looked 
after  by  the  justices  of  the  peace,  acting  in  some  matters  individually 
and  in  others  in  petty  or  special  sessions  of  several  justices,  while  the 
justices  in  each  county  also  held  collectively  quarterly  sessions  as  a 
court  of  criminal  jurisdiction,  which  acted  also  as  the  judicial  and  ad- 
ministrative authority  for  the  county. 

Parishes  were  primarily  ecclesiastical  districts ; but  under  the 
legislation  of  the  Tudors  they  became  civil  districts,  in  poor  law  and 
local  highway  matters  and  the  assessment  of  local  taxes — taking  the 
place  of  the  earlier  towns.  The  governing  body  was  the  parish  vestry, 
which  in  theory  was  open  to  all  inhabitants,  but  in  practice  had  become 
in  many  places  a select  self-continuing  body.  Parish  officers  included 
constables,  overseers  of  the  poor,  and  surveyors  of  highways. 

Manors,  with  special  local  courts  and  other  privileges,  were  fast 
disappearing.  But  there  were  several  hundred  boroughs,  with  their 


1042 


own  local  courts  and  property,  and  separate  representation  in  Parlia- 
ment. In  most  of  these,  local  affairs  were  managed  by  a self-per- 
petuating council ; but  in  some  places  the  council  was  elected  by  a 
varying  body  of  freemen. 

In  the  American  colonies  manors  and  hundreds  were  formed  in 
a few  places  (in  Maryland,  Virginia  and  New  York)  ; but  they  soon 
disappeared.  Counties  were  organized  gradually  in  most  of  the  colo- 
nies. Parishes  were  established  in  some  of  the  southern  states,  but 
were  of  little  importance.  In  New  England  and  the  Middle  Colonies 
towns  were  formed;  and  in  New  England  the  towns  became  the  most 
important  unit  of  local  government.  In  these  New  England  towns 
the  central  organ  was  the  open  town  meeting  of  legal  voters,  which 
elected  selectmen  and  other  officers,  voted  appropriations  and  local 
taxes,  and  passed  local  by-laws.  In  New  York,  New  Jersey  and 
Pennsylvania,  towns  were  of  less  importance  than  in  New  England. 

Important  changes  in  county  government  were  made  during  the 
colonial  period.  Toward  the  end  of  the  seventeenth  century  locally 
elected  county  boards  (of  different  types)  were  established  in  New 
York,  New  Jersey,  and  Pennsylvania,  which  gradually  acquired  the 
fiscal  and  administrative  powers  of  the  justices  of  the  peace.  In  Penn- 
sylvania sheriffs  were  made  locally  elective  (in  1705).  A number 
of  new  county  officers  were  established : county  treasurers  in  Massa- 
chusetts in  1654,  local  prosecuting  attorneys  in  Connecticut  in  1704, 
and  recorders  of  deeds  in  most  of  the  colonies.  A number  of  boroughs 
and  cities  were  also  established  in  the  middle  and  southern  colonies. 

In  the  organization  of  state  governments  at  the  time  of  the  Revo- 
lution, there  were  some  changes  in  local  government  but  no  radical  re- 
construction. Many  of  the  first  state  constitutions  contained  pro- 
visions about  county  government,  with  some  changes  in  the  direction 
of  a more  decentralized  system,  by  means  of  appointment  by  the  legis- 
lature (and  in  a few  cases  local  popular  elections)  and  definite  terms 
for  sheriffs,  justices  of  the  peace,  and  militia  officers.  Towns  were 
mentioned  only  in  the  New  Jersey  constitution;  and  the  government 
of  towns  and  parishes  remained  as  before. 

With  the  expansion  of  population,  local  institutions  were  devel- 
oped in  the  new  states,  and  further  changes  were  made.  Up  to  the 
middle  of  the  nineteenth  century  these  changes  were  mainly  in  the 
direction  of  a more  democratic  and  decentralized  system.  The  elec- 
toral franchise  was  extended  to  include  all  male  citizens.  County  of- 
ficials were  made  locally  elective ; and  the  number  of  such  officials 
was  steadily  increased.  In  most  of  the  states  an  elective  county  board 
took  over  the  administrative  functions  of  the  justices  of  the  peace'; 
while  sheriffs,  prosecuting  attorneys,  county  treasurers,  county  clerks, 
recorders,  and  justices  of  the  peace  all  became  elective  officials  with 
short  terms.  Towards  the  end  of  this  period  constitutional  re- 
strictions on  the  formation  of  new  counties  began  to  appear. 

Towns  were  also  organized  in  the  northern  states,  with  functions 
similar  to  those  of  New  York  and  Pennsylvania ; but  in  the  southern 
states  the  parish  disappeared  as  a civil  district  (except  in  Louisiana, 
where  it  corresponds  to  the  county)  ; and  the  county  became  the  main 


1043 


unit  of  local  government.  Cities  and  villages  were  also  established  in 
all  of  the  states,  organized  for  the  most  part  under  special  charters, 
reflected  the  same  ideas  as  were  affecting  county  government.  For 
local  school  administration  small  school  districts  were  formed,  which 
marks  the  development  of  specialized  local  districts  and  a further 
step  in  decentralization.  These  developments  in  local  government  in 
other  districts  than  counties  were  for  the  most  part  made  by  statu- 
tory legislation ; but  in  some  states  the  township  system  was  authorized 
by  constitutional  provisions. 

Since  the  Civil  War  there  have  been  important  changes  in  local 
government,  superimposing  new  elements  on  the  former  machinery, 
and  resulting  in  such  a complexity  that  it  is  difficult  to  recognize  any 
clearly  defined  system.  The  organization  of  counties  has  been  ex- 
tended throughout  the  country : and  the  scope  of  county  administration 
has  greatly  increased  in  amount  and  relative  importance ; but  except  for 
a few  recent  experiments,  there  has  been  no  important  changes  in  the 
general  plan  of  county  government.  On  the  other  hand,  the  general 
system  of  town  or  township  government  has  not  extended  to  the  newer 
states  beyond  the  arid  plains;  while  in  the  older  states  outside  of  New 
England  the  town  has  declined  in  importance. 

Cities  and  villages  have  multiplied  and  increased  enormously ; and 
the  most  important  developments  in  local  government  have  been  in 
connection  with  these  urban  municipalities.  More  highly  centralized 
governments  have  been  established,  such  as  the  mayor  plan,  the  com- 
mission form,  and  the  city  manager  plan.  Another  development  in 
recent  years  has  been  a marked  increase  in  the  number  of  special  local 
districts  and  the  appearance  of  many  new  types  of  such  districts. 

Constitutional  provisions  on  local  government  have  dealt  for 
the  most  part  with  counties  and  county  officers,  prohibitions  on  special 
legislation  for  particular  municipalities,  and  restrictions  on  municipal 
debts.  Beginning  with  Missouri  in  1875,  thirteen  states  have  adopted 
constitutional  provisions  for  municipal  home  rule,  and  two  states 
have  provisions  for  county  home  rule.  In  other  respects  most  of  the 
later  developments  in  local  government  have  been  by  legislation. 

Another  tendency  of  the  later  period  in  statutory  legislation  has 
been  the  development  of  state  administrative  supervision  over  local 
authorities,  in  such  matters  as  taxation  and  finance,  school  administra- 
tion, public  charities,  public  health  and  public  utilities. 


Constitutional  provisions.  There  is  a good  deal  of  variation 
in  the  extent  and  character  of  constitutional  provisions  relating  to 
local  government  in  the  different  states.  In  the  New  England  states 
and  a number  of  others  (mainly  those  where  there  has  been  no  gene- 
ral revision  of  the  state  constitution  since  1860  as  Iowa,  Oregon  and 
Wisconsin),  there  are  few  provisions  on  local  government,  and  these 
are  in  scattered  sections  of  the  constitutions.  But  in  about  two-thirds 
of  the  state  constitutions  there  is  an  article  (and  in  some  states  two 
or  three  articles)  on  such  subjects  as  Counties,  Counties  and  Town- 


1044 


ships,  and  Municipal  Corporations.  In  several  states  (Missouri,  Utah, 
and  Washington)  there  is  an  article  on  Counties,  Cities  and  Towns; 
and  the  Michigan  constitution  of  1908  has  one  article  with  the  more 
comprehensive  title  of  Local  Government.  But  in  most  of  these  states, 
in  addition  to  such  articles,  there  are  other  provisions  on  local  govern- 
ment in  the  articles  on  the  legislative  department,  judicial  department, 
and  taxation  or  finance.  The  most  detailed  provisions  are  in  the  con- 
stitutions of  California,  Colorado,  Michigan,  Missouri,  Oklahoma,  and 
Washington. 

Most  common  are  provisions  relating  to  county  officers,  and  re- 
strictions on  the  formation  of  counties,  on  special  legislation,  and  on 
municipal  debts.  Municipal  home  rule  provisions  in  a number  of 
states  are  in  considerable  detail.  In  some  cases  there  are  detailed  pro- 
visions for  particular  communities,  such  as  those  relating  to  Baltimore 
in  the  Maryland  constitution,  and  to  St.  Louis  in  the  Missouri  con- 
stitution. 


General  characteristics  of  counties.  Counties  are  usually  es- 
tablished as  bodies  “politic  and  corporate” ; and  by  these  terms  it  is 
indicated  that  they  are  at  the  same  time  districts  for  purposes  of  state 
administration  and  also  for  certain  local  purposes.  Their  functions  as 
state  agents  are  considered  the  more  important;  and  in  a number  of 
states  they  are  still  considered  as  quasi  corporations,  and  not  municipal 
corporations  in  the  full  sense,  as  in  Illinois. 

Usually  the  state  legislature  has  power  to  establish  counties;  and 
in  the  North  Atlantic  group  of  states  and  some  others  there  are  no  con- 
stitutional limitations  on  this  power.  But  the  constitutions  of  most 
states  now  impose  various  restrictions.  Most  frequently  new  counties 
can  only  be  formed  with  the  consent  of  the  voters ; and  there  is  a mini- 
mum area — most  commonly  about  400  square  miles,  but  ranging  from 
275  square  miles  in  Tennessee  to  24  congressional  townships  (about 
860  square  miles)  in  North  Dakota  and  900  square  miles  in  Texas. 
About  a third  of  the  states  also  require  a minimum  population,  vary- 
ing from  1,000  in  North  Dakota  to  10,000  in  Ohio.  Several  states 
authorize  cities  with  more  than  a certain  population  (20,000  in  Minne- 
sota, 100,000  in  Michigan,  and  Missouri)  to  be  organized  as  counties, 
without  regard  to  the  minimum  area. 

About  a third  of  the  states  require  a local  referendum  for  changes 
in  county  lines ; and  about  the  same  number  require  a local  referendum 
for  a change  in  the  county  seat,  many  requiring  a three-fifths  or  two- 
thirds  vote  for  this  purpose.  About  a third  of  the  state  constitutions 
provide  that  where  part  of  one  county  is  transferred  to  another,  there 
must  be  a pro-rata  adjustment  of  debts. 

In  most  states  new  counties,  or  changes  in  county  lines,  are  now 
seldom  made ; but  in  a few  of  the  newer  states  the  creation  of  new 
counties  and  readjustments  of  boundaries  are  still  not  infrequent. 

Most  of  the  larger  states  have  from  60  to  100  counties.  Delaware 
has  only  three  counties  and  Rhode  Island  five,  while  Texas  has  245. 


1045 


In  area  and  population  there  are  wide  variations.  Most  counties  have 
from  400  to  650  square  miles.  In  population  most  counties  have  be- 
tween 10,000  and  30,000 ; but  in  the  North  Atlantic  states  more  than 
half  the  counties  have  over  50,000  population,  and  there  are  compara- 
tively few  counties  in  other  populous  states  as  small  as  a considerable 
number  of  those  in  Illinois. 

According  to  the  traditional  treatment  of  local  government  in 
the  United  States,  county  government  has  been  considered  of  most 
importance  in  the  Southern  states,  and  of  least  importance  in  New 
England.  But  by  the  quantitative  standard  of  per  capita  expenditure, 
the  county  is  now  of  greatest  importance  in  the  far  west ; and  next  to 
these  comes  the  Middle  Atlantic  and  North  Central  States,  where  the 
largest  aggregate  county  expenditures  are  made.  In  the  Southern  and 
New  England  states  county  expenditures  are  of  less  importance. 


County  government.  About  two-thirds  of  the  state  constitu- 
tions have  definite  provisions  for  the  election  of  a list  of  county  officers, 
with  further  provisions  as  to  qualifications,  term,  and  compensation ; 
but  other  officers  may  also  be  established  in  these  states  by  law.  In  a 
few  states  (Ohio,  Minnesota,  Kansas,  Nebraska,  and  Wyoming)  there 
is  a general  provision  authorizing  the  legislature  to  provide  for  the 
election  of  county  officers ; while  in  other  states  (mostly  in  New  Eng- 
land and' the  South),  the  legislature  exercises  this  power  without  ex- 
press provision  in  the  constitution. 

But  whether  regulated  by  the  constitution  or  by  statute,  no  definite 
principle  seems  to  have  been  followed  in  the  organization  of  county 
government,  except  that  of  popular  election.  There  is  no  clearly  de- 
fined chief  officer  of  the  county,  corresponding  to  the  governor  of 
the  state  or  mayor  of  a city.  Nor  is  there  any  body  with  important 
powers  of  local  legislation,  corresponding  to  the  state  legislature  or 
city  council.  The  county  officers  form  a loose  aggregation,  with  no 
effective  responsibility  or  control. 

In  all  but  two  states  (Georgia  and  Rhode  Island)  there  is  an  elec- 
tive county  board  in  each  county,  which  usually  levies  county  taxes 
and  has  supervision  over  certain  matters  of  local  administration,  but 
with  little  control  over  the  other  elective  county  officers.  In  about 
two-thirds  of  the  states  these  county  boards  are  small  bodies,  usually 
of  three  members,  elected  at  large  and  called  county  commissioners ; 
but  in  some  states  with  small  boards  the  number  may  be  as  many  as 
five,  and  in  Iowa  and  California  the  maximum  is  seven  and  in  Virginia 
eight;  and  in  some  of  these  cases  the  members  are  elected  by  districts 
and  the  boards  are  called  boards  of  supervisors.  In  other 


states 

the 

county 

boards 

are 

larger  (usually  from 

15  to 

50 

members  ) 

elected 

by 

townships  or  districts. 

Boards 

of 

supervisors 

of  this 

type 

are  provided  in  New 

York,  New  Jersey,  Michigan,  and  Wisconsin;  and  the  police  juries  in 
Louisiana  and  county  courts  in  Kentucky,  Tennessee  and  Arkansas 
have  a similar  organization.  In  a few  states,  as  in  Illinois  and 


1046 


Missouri,  there  is  an  option  between  the  small  board  of  county  com- 
missioners and  the  larger  board  of  supervisors.  There  is,  however, 
little  difference  in  the  powers  of  the  two  types  of  county  boards ; and 
the  larger  bodies  are  more  unwieldy  for  administrative  business.  It 
may  be  noted  that  the  small  county  boards  are  found  in  many  of  the 
states  with  town  or  township  government,  as  Massachusetts,  Pennsyl- 
vania, Ohio,  and  Indiana;  as  well  as  in  the  Southern  and  far  Western 
states. 

In  a few  states  the  powers  of  making  appropriations  and  levying 
taxes  have  been  placed  in  a body  distinct  from  the  county  administra- 
tive board.  Thus  in  Indiana,  there  was  established  (1899)  for  each 
county  a county  council  of  seven  members  for  these  purposes,  in  addi- 
tion to  the  board  of  three  county  commissioners ; and  similar  results 
have  been  secured  in  other  ways  in  some  of  the  smaller  New  England 
states. 

A few  states  have  taken  some  steps  toward  developing  a chief 
executive  for  the  county.  In  some  New  Jersey  counties  the  chairman 
of  the  county  board  has  special  powers,  similar  to  those  of  the  presi- 
dent of  the  Cook  County  board  of  commissioners  in  Illinois.  In  Ala- 
bama the  probate  judge  is  ex-officio  chairman  of  the  county  board, 
and  exercises  a larger  influence  than  the  other  members.  In  Georgia, 
where  there  is  no  county  board,  the  ordinary  acts  as  probate  judge  and 
administrative  officer,  aided  in  some  matters  by  the  grand  jury. 

Rhode  Island  has  only  two  county  officers,  the  sheriff  and  clerk 
of  court,  both  appointed  by  the  legislature.  The  other  New  Eng- 
land states  have  about  six  officers  in  each  county.  All  the  other 
states  have  a more  numerous  list  of  elective  county  officers,  largely 
independent  of  each  other  and  of  the  county  board.  Some  of 
these  are  to  be  found  in  most  of  the  states ; but  in  the  case  of 
others  there  is  a good  deal  of  variation  in  titles  and  functions. 

The  one  office  found  in  every  county  is  the  sheriff,  now  elected 
in  all  the  states  except  Rhode  Island ; in  every  county  there  is  also 
a court  clerk,  or  a county  clerk,  who  is  usually  secretary  of  the 
county  board  with  other  miscellaneous  duties,  but  in  a number  of 
states  (as  in  Ohio  and  Minnesota)  the  county  auditor  has  import- 
ant functions  elsewhere  vested  in  the  county  clerk.  Nearly  all  the 
states  have  a system  of  local  prosecuting  officers,  corresponding 
to  the  state’s  attorney  in  Illinois ; and  in  most  states  this  is  an 
elective  county  officer.  But  the  title  varies  a good  deal,  including 
such  terms  as  prosecuting  attorney,  district  attorney,  solicitor  and 
county  attorney ; and  in  a number  of  states  (mainly  in  the  South, 
but  including  also  Massachusetts  and  Oregon),  these  officers  us- 
ually act  in  judicial  districts  larger  than  a county. 

County  treasurers  are  provided  in  nearly  all  the  states ; but  in 
Connecticut  and  Vermont  these  officers  are  appointed.  In  most 
states  there  is  a county  judge  or  probate  judge  in  each  county; 
New  York  and  New  Jersey  have  both  of  these  officers  in  every 
county,  and  in  some  other  states  there  are  two  officials  in  the 
larger  counties, .as  in  Illinois.  Most  states  have  county  recorders, 


1047 


or  registers  of  deeds,  and  coroners;1  and  outside  of  New  England 
there  are  usually  county  surveyors  and  county  (or  district)  school 
commissioners.  In  addition  to  the  clerk  of  the  county  court,  there 
are  frequently  additional  clerks  for  probate  and  circuit,  district, 
or  other  courts.  In  the  Southern  states  there  is  regularly  a county 
assessor  and  tax  collector ; and  in  most  of  the  middle  Atlantic 
and  North  Central  states  there  is  a county  assessing  officer,  or 
assessment  functions  are  vested  in  the  county  clerk,  treasurer,  audi- 
tor, or  other  county  officer. 

In  the  states  outside  of  New  England  there  are  county  road 
commissioners  or  superintendents,  and  also  poor  commissioners 
or  superintendents  of  the  poor  farm.  These  officers  are  usually 
appointed,  but  in  a few  states  are  elected.  A good  many -states 
have  appointed  county  health  officers. 

County  officers  are  elected  for  terms  varying  from  two  to  six 
years.  In  the  states  east  of  the  Mississippi  river,  the  terms  of 
different  officers  often  overlap  each  other.  In  the  states  west  of  the 
Mississippi  a uniform  term  of  two  years  is  usual  for  all  county 
officers. 

In  most  counties  the  subordinate  staff  of  county  officers  is 
small ; but  in  the  more  populous  counties  with  large  cities,  the 
number  of  deputies,  clerks,  and  other  employees  is  larger  and  of 
more  importance.  In  most  cases  these  positions  are  held  at  the 
pleasure  of  their  superior  officers;  and  are  often  subject  to  political 
patronage.  In  eighteen  of  the  larger  New  York  counties,  several 
New  Jersey  counties,  and  a few  isolated  counties  in  other  states, 
the  merit  system  of  civil  service  has  been  applied  to  some  extent. 


County  home  rule.  Until  after  the  beginning  of  the  present 
century  there  was  little  public  criticism  of  the  general  methods 
of  county  government,  although  not  infrequently  there  were  ser- 
ious charges  and  scandals  in  particular  counties.  Criticism  of  the 
fee  system,  which  had  continued  from  early  days,  led  in  many 
states  to  the  establishment  of  fixed  salaries  for  county  officers;  but 
the  fee  system  remains  in  force  in  many  places. 

Since  about  1910,  there  has  been  a good  deal  of  active  discus- 
sion of  county  government  and  serious  efforts  have  been  made 
to  secure  important  changes,  notably  in  New  York,  New  Jersey, 
California,  and  Ohio.  But  constitutional  provisions  requiring  uni- 
form legislation  and  prescribing  a detailed  list  of  elective  county 
officers  have  prevented  any  far  reaching  changes,  without  amending 
the  state  constitution. 

In  California  and  Maryland  a method  of  introducing  new  plans 
of  county  organization  has  been  found  by  the  recent  adoption  of 
constitutional  amendments  authorizing  county  home  rule  charters. 
Before  this,  in  a few  states  where  municipal  home  rule  charters 

1 In  Massachusetts  and  Maine  coroners  have  been  replaced  by  appointed 
medical  examiners. 


1048 


were  authorized,  there  were  special  provisions  for  partially  con- 
solidated city  and  county  government  for  certain  large  cities,  such 
as  St.  Louis,  San  Francisco,  and  Denver.  But  the  California 
amendment  of  1911  and  the  Maryland  home  rule  amendment  of 
1915  authorize  any  county  to  elect  a charter  board  to  frame  a 
county  charter,  subject  to  approval  by  the  electors. 

The  California  amendment  provides  in  detail  the  procedure  for 
preparing  a county  charter  and  its  contents ; and  further  amend- 
ments to  the  constitution  have  since  been  adopted  with  special 
reference  to  conditions  in  Alameda  county.  Under  the  county  home 
rule  amendment  four  counties  in  California  have  framed  and 
adopted  local  county  charters : Los  Angeles  and  San  Bernardino 
counties  in  1913,  and  Butte  and  Tehama  counties  in  1917.  Under 
the  Los  Angeles  county  charter,  the  only  elective  county  officers 
are  five  supervisors,  sheriff,  district  attorney,  assessor  and  justices 
of  the  peace.  Other  county  officers  are  appointed  by  the  super- 
visors, and  constables  are  appointed  by  the  sheriff,  all  from  civil 
service  lists.  The  San  Bernardino  charter  provided  for  the  con- 
solidation of  offices,  and  for  the  appointment  of  all  other  officers 
by  the  board  of  supervisors  ; but  a charter  amendment  adopted  in 
1915  restored  the  elective  system.  In  Butte  and  Tehama  counties, 
offices  have  been  consolidated. 

No  Maryland  county  has  as  yet  adopted  a charter;  but  the 
new  Baltimore  home  rule  charter  provides  for  a partial  consoli- 
dation of  city  and  county  offices. 

A proposed  constitutional  amendment  to  authorize  county 
home  rule  charters  was  introduced  in  the  Ohio  General  Assembly 
at  the  session  of  1919. 


Towns  and  townships.  Constitutional  provisions  on  town  and 
township  government  are  comparatively  limited.  In  about  a third  of 
the  states  there  are  provisions  for  the  organization  of  townships  by 
general  law.  These  are  mostly  states  in  the  middle  west,  but  some  are 
southern  and  far  western  states,-  where  the  township  system  has  not 
been  fully  established,  as  North  and  South  Carolina,  California,  Idaho, 
LTtah,  Washington,  and  Wyoming.  A few  states  (Illinois,  Missouri, 
Nebraska,  and  South  Dakota)  provide  for  an  optional  system  of  town- 
ship government.  On  the  other  hand  in  the  New  England  states,  where 
towns  are  of  most  importance,  and  in  the  Middle  Atlantic  states,  there 
is  seldom  any  mention  of  them  in  the  state  constitutions. 

In  the  states  with  constitutional  provisions  there  are  sometimes 
brief  provisions  about  town  officers ; but  in  the  main  the  organization 
and  powers  of  towns  and  townships  are  regulated  by  statute  law.  Con- 
stitutional restrictions  on  municipal  debt,  and  other  general  provisions 
as  to  public  officers,  frequently  apply  to  towns  and  townships  as  well  as 
other  municipalities. 

New  England  towns  are  the  most  important.  Except  in  the  un- 
settled parts  of  northern  Maine  and  New  Hampshire,  the  whole  area 


1049 


of  each  state  is  formed  into  towns  and  cities.  The  towns  are  irregular 
areas  of  from  20  to  30  square  miles,  including  both  rural  territory  and 
more  compact  village  settlements.  The  greater  importance  of  New 
England  towns  as  compared  with  those  in  other  parts  of 
the  country  is  due  in  part  to  the  exercise  of  some  func- 
tions elsewhere  performed  by  county  officers,  but  more  to 
the  fact  that  New  England  towns  have  substantially  as  ex- 
tensive powers  as  cities  and  villages.  In  Connecticut,  Maine,  and 
Vermont  some  villages  and  boroughs  (in  Connecticut  also  cities)  have 
been  organized  within  towns,  but  this  is  exceptional.  There  are  thus 
many  towns  which  include  urban  communities  of  considerable  size.  In 
Massachusetts  one  town  has  a population  of  nearly  40,000. 

The  primary  organ  of  town  government  in  New  England  is  the 
town  meeting  of  legal  voters.  Annual  town  meetings  are  usually  held 
in  the  spring,  and  special  meetings  at  other  times.  These  are  formally 
summoned  by  warrant,  with  a statement  of  the  business  to  be  trans- 
acted. At  these  meetings  a moderator  is  elected  as  chairman,  town  offi- 
cers are  elected,  reports  of  officers  are  presented,  and  appropriations, 
taxes,  and  local  by-laws  are  discussed  and  voted. 

In  the  smaller  towns  there  is  usually  a fair  attendance  of  voters  at 
the  town  meetings ; and  there  is  often  active  and  interesting  debate. 
But  in  the  larger  towns  a full  attendance  is  impossible,  and  the  number 
present  is  often  small ; and  the  business  is  apt  to  be  mainly  a formal 
ratification  of  recommendations  by  town  officers  and  committees.  In 
some  towns  a committee  on  appropriations  is  selected  beforehand  to 
report  on  the  annual  budget. 

There  is  a considerable  number  of  town  boards  and  other  officials 
but  no  one  chief  executive  officer.  The  most  important  officers  are  the 
selectmen  (from  three  to -nine),  who  act  as  a general  administrative 
board.  Most  towns  have  also  a school  committee,  board  of  health  and 
overseers  of  the  poor.  Larger  towns  have  also  water,  library,  and  park 
boards.  Each  town  has  also  a town  clerk,  assessors,  treasurer,  con- 
stables, and  often  a considerable  list  of  minor  officials,  such  as  pound 
keepers,  fence  viewers,  etc.  Most  town  officers  serve  without  pay ; 
but  in  the  larger  places  paid  officials  have  been  introduced  for  the  more 
important  places. 

The  New  England  town  remains  an  active  agency  of  local  govern- 
ment ; and  in  small  communities  of  native  stock  continues  to  give  rea- 
sonable satisfaction.  But  in  larger  industrial  towns,  with  many  voters 
of  new  racial  elements,  it  is  not  so  successful.  The  combination  of  all 
branches  of  local  government  in  one  organization  has  distinct  advan- 
tages over  a series  of  independent  local  authorities.  But  there  is  need 
for  a more  active  centralized  control  over  the  various  boards  and  of- 
ficials than  can  be  exercised  in  a public  town  meeting  under  present 
day  social  conditions. 

In  the  large  group  of  northern  and  central  states  from  New  York 
and  New  Jersey  westward  to  Kansas  and  the  Dakotas,  general  systems 
of  towns  and  townships  have  been  established.  In  most  of  these  states 
practically  the  entire  area  is  divided  into  towns,  except  that  cities  (and 
sometimes  villages)  have  absorbed  the  town  government.  In  the  older 


1050 


easterly  states  of  this  group,  the  towns,  like  those  of  New  England,  are 
irregular  in  shape  and  vary  a good  deal  in  size.  From  Ohio  westward 
the  standard  township  is  the  geographical  area  of  that  name,  approx- 
imately six  miles  square,  originally  formed  as  a surveying  unit  for  the 
public  lands  ceded  to  the  United  States,  and  commonly  known  as  the 
congressional  township ; but  in  many  cases  the  boundaries  of  congres- 
sional townships  do  not  coincide  with  those  of  the  civil  towns. 

Such  towns  and  townships  in  these  central  states  are,  however,  of 
much  less  importance  than  the  New  England  towns;  and  their  import- 
ance is  declining.  This  is  partly  due  to  the  greater  and  increasing  im- 
portance of  county  government ; but  is  more  largely  the  result  of  the 
separate  organization  of  villages,  boroughs,  and  cities,  with  their  own 
local  government  for  the  special  problems  of  these  urban  and  semi- 
urban  communities,  leaving  to  the  township  only  a few  and  mostly  un- 
important functions.  Another  factor  has  been  the  artificial  and  geo- 
metrical nature  of  the  township  area,  and  the  lack  of  social  unity  or 
self-consciousness.  Most  of  the  towns  have  thus  a small  population, 
largely  agricultural ; but  in  a few  states  towns  include  cities  of  con- 
siderable population. 

In  Illinois  and  the  Dakotas  some  counties  are  not  organized  under 
the  township  system  (except  for  school  purposes)  ; and  in  Missouri 
and  Nebraska  less  than  a fourth  of  the  counties  have  the  township  sys- 
tem. In  Illinois  and  Indiana,  and  generally  in  Ohio  and  Nebraska, 
cities,  and  in  most  of  the  central  states  all  villages,  remain  part  of  the 
township ; but  in  most  states  cities  are  independent  of  the  townships, 
and  are  vested  with  town  functions,  and  this  is  also  true  of  boroughs 
in  New  Jersey  and  Pennsylvania,  and  villages  in  Wisconsin,  Minnesota, 
and  the  Dakotas. 

For  the  government  of  these  towns  or  townships,  the  state  laws 
provide  for  town  meetings  of  voters  in  the  northerly  tier  of  states — 
New  York,  New  Jersey,  Michigan,  Illinois,  Wisconsin,  Minnesota,  and 
the  Dakotas.  But  as  there  is  little  to  be  done  at  these  meetings  except 
to  elect  town  officers,  the  attendance  at  the  business  meetings  in  the 
great  majority  of  towns  is  very  slight ; and  the  town  meetings  have  none 
of  the  vitality  or  active  interest  shown  in  New  England.  In  the  south- 
erly tier  of  states — Pennsylvania,  Ohio,  Indiana,  Iowa,  Kansas,  and 
Missouri,  there  is  no  provision  for  town  meetings,  although  there  are 
of  course  town  elections  at  which  some  questions  are  at  times  submitted 
to  a referendum  vote  of  the  electors. 

Two  main  types  may  be  recognized  in  the  organization  of  town  of- 
ficers. In  Pennsylvania,  Ohio,  Iowa,  Minnesota,  and  the  Dakotas  (the 
first  three  states  with  no  town  meetings),  there  is  a town  board  or  com- 
mittee, somewhat  similar  to  the  New  England  selectmen  (although 
that  term  is  not  used  in  any  of  these  states.)  In  the  other  states  there 
is  a single  principal  officer  of  the  town  (though  he  does  not  have  any 
definite  authority  over  other  elective  town  officers),  assisted  in  some 
matters  by  a town  board.  In  states  with  the  large  county  boards  of 
supervisors,  the  principal  town  officer  is  the  supervisor,  who  is  also  a 
member  of  the  county  board.  In  Indiana,  Missouri,  Kansas,  and  Okla- 
homa (where  there  are  small  boards  of  county  commissioners)  the 


1051 


principal  town  officer  is  called  the  township  trustee.  The  statutory 
duties  of  the  town  supervisors  and  trustees  vary  in  different  states. 
In  New  York,  Illinois,  and  Missouri  they  act  as  town  treasurers;  in 
Michigan,  and  Kansas  as  town  assessors,  besides  having  other  func- 
tions. The  town  trustees  in  Indiana,  besides  having  the  usual  duties, 
acts  also  as  trustee  for  the  school  township. 

Other  elective  town  officers  include  clerks,  treasurers,  assessors, 
road  commissioners,  justices  of  the  peace,  constables,  and  occasionally 
one  or  two  more ; but  few  of  the  numerous  boards  and  minor  officials 
of  the  New  England  towns  appear  in  the  central  states. 

In  most  of  the  central  states  towns  are  further  divided  into  school 
districts;  and  villages  and  cities  are  freely  organized;  while  other 
special  districts  are  frequently  established.  These  will  be  noted  in  a 
later  section  of  this  chapter. 

In  the  southern  and  far  western  states,  counties  are  divided  into 
precincts  or  districts  for  various  purposes ; and  usually  into  several 
overlapping  series  of  districts.  In  some  cases  these  districts  elect  local 
officials,  while  in  others  they  are  merely  convenient  areas  of  admin- 
istration ; but  except  in  the  case  of  villages  and  cities  and  some  spe- 
cial districts,  such  local  districts  are  seldom  incorporated.  In  a few 
states*  (California  and  North  Carolina)  the  term  township  has 
been  applied  to  such  districts. 


Villages,  boroughs,  and  cities.  In  the  United  States  as  a whole 
there  are  more  than  10,000  incorporated  municipalities  variously 
styled  incorporated  towns,  villages,  boroughs,  and  cities.  These 
are  compactly  settled  communities,  ranging  from  hamlets  of  a few 
hundred  population  to  metropolitan  cities  such  as  Chicago  and 
New  York.  Comparatively  few  village  corporations  have  been 
formed  in  New  England,  as  the  town  governments  serve  the  needs 
of  the  village  settlements ; but  elsewhere  separate  municipal  organ- 
izations for  even  small  villages  are  common. 

No  sharp  distinction  can  be  drawn  between  the  different  terms 
for  such  municipalities.  In  Kansas  and  some  other  states  even 
the  smallest  municipalities  are  called  cities.  In  other  states  the 
smaller  places  are  called  towns,  villages,  or  boroughs ; and  the 
larger  are  called  cities ; but  there  is  no  uniformity  as  to  the  divid- 
ing line.  In  New  York  and  Pennsylvania  the  minimum  population 
for  cities  is  10,000;  in  other  states  this  ranges  from  5,000  (in  Ohio, 
Virginia,  and  Louisiana),  to  2,000  in  a number  of  states,  and  to  250 
in  Kansas.  The  term  borough  is  applied  to  the  smaller  municipalities 
in  Connecticut,  New  Jersey  and  Pennsylvania. 

Such  municipalities  are  usually  organized  on  petition  (gener- 
ally to  a county  officer)  and  a local  popular  vote  y but  in  a few 
states  they  may  be  organized  by  the  county  board  without  a vote 
in  the  community  affected.  A change  from  a village  to  a city  like- 
wise, in  most  states,  requires  a local  referendum;  and  in  Massa- 


1052 


chusetts  all  cities  must  be  established  by  act  of  the  state  legisla- 
ture. 

The  government  of  these  municipalities  necessarily  shows  wide 
variations.  Villages  and  boroughs  are  usually  organized  under  a 
general  law  in  each  state,  by  which  there  is  a board  of  trustees 
or  council  (of  from  three  to  nine  members),  usually  elected  at 
large,  with  a president  or  mayor  with  some  powers  as  chief  execu- 
tive. Usually  there  is  also  a clerk,  treasurer,  street  commissioner, 
and  chief  police  officer,  and  in  many  places  assessors,  attorneys, 
and  other  officers.  The  functions  of  villages  generally  include 
care  of  the  streets,  police,  water  supply,  sanitation,  and  fire  pro- 
tection, the  power  to  pass  local  ordinances,  and  often  other  munici- 
pal affairs. 

For  cities  there  is  no  general  type  of  organization,  even  in 
a single  state.  In  some  states  special  charters  and  laws  are  still 
enacted  for  each  city.  In  most  states  legislation  on  city  government 
must  be  by  general  law;  but  by  passing  laws  applying  only  to 
classes  of  cities  or  by  optional  laws,  different  forms  of  organiza- 
tion are  provided  for  different  cities.  In  thirteen  states  (mostly 
west  of  the  Mississippi  river,  but  including  Michigan,  Ohio,  and 
Maryland),  there  are  constitutional  provisions  authorizing  cities 
(and  in  some  states  also  villages)  to  frame  and  adopt  home  rule 
charters  for  their  local  government. 

Amid  the  numerous  diversities,  three  main  types  of  organiza- 
tion may  be  distinguished.  The  most  common  is  still  that  of  a 
mayor  and  council  (the  latter  usually  elected  by  wards),  with  a 
varying  number  of  administrative  officials  and  boards,  some  elected 
and  some  appointed.  In  some  of  the  eastern  states  and  in  Indi- 
ana the  tendency  in  cities  with  this  form  since  about  1880  has  been 
to  increase  the  powers  of  the  mayor,  and  to  centralize  authority  in 
his  hands ; but  there  are  many  qualifications  and  exceptions. 

Since  about  1900  two  other  more  centralized  types  of  municipal 
government  have  been  introduced  on  a considerable  scale.  Sev- 
eral hundred  cities  and  villages  in  all  parts  of  the  country  have 
adopted  the  commission  plan,  under  which  the  administrative  pow- 
ers of  the  municipal  government  are  vested  in  a board,  usually  of 
five  elected  commissioners  (sometimes  three  or  seven).  One  mem- 
ber, elected  as  mayor,  is  chairman  of  the  board,  but  he  has  little 
or  no  special  power. 

More  recently  the  city  manager  plan  has  been  adopted  in  a 
number  of  cities.  This  has  usually  been  based  on  a small  council 
elected  at  large,  to  determine  general  policies,  and  to  select  a 
trained  city-manager,  as  the  administrative  head  of  the  city  govern- 
ment. 

Under  these  later  plans,  however,  the  local  courts  and  schools, 
and  sometimes  other  functions,  usually  remain  under  elected  offi- 
cials, not  under  the  control  of  the  commission  or  city -manager. 


1053 


Special  districts.  In  addition  to  the  more  general  local  gov- 
ernment units  noted  above,  there  has  been  a marked  tendency 
in  recent  years  in  other  states  as  well  as  in  Illinois  toward  the 
creation  of  a great  variety  of  other  local  districts  for  special  pur- 
poses, with  the  result  of  further  increasing  the  complexity  of  local 
government. 

Early  illustrations  of  such  special  districts  are  to  be  found  in 
the  precincts  or  districts  established  in  the  southern  (and  later 
in  the  far  western)  states  where  the  township  system  was  not 
introduced.  Another  early  and  much  more  widespread  example 
is  the  school  district,  organized  within  towns  and  counties,  as  the 
primary  unit  of  local  school  administration ; and  such  school  dis- 
tricts in  many  states  have  become  more  than  administrative  sub- 
divisions, having  their  own  taxing  power  and  not  infrequently  be- 
ing given  the  full  legal  status  of  a municipal  corporation. 

But  the  recent  tendencies  have  multiplied  the  number  and 
variety  of  such  special  districts  to  a great  extent.  Such  special 
districts  now  include  the  following  classes : drainage  districts,  in 
forty  states ; irrigation  districts,  flood  control  districts,  reclamation 
districts,  water  districts,  sanitary  districts,  local  improvement  dis- 
tricts, road  districts,  bridge  districts,  park  districts,  watch  districts, 
fire  and  lighting  districts,  public  health  districts,  and  ‘‘rural  com- 
munities”— the  last  named  in  North  Carolina.  In  some  cases  the 
classification  has  been  carried  further,  as  in  the  case  of  water  storage 
districts,  or  forest  preserve  districts. 

Not  all  of  these  classes  of  special  districts  are  to  be  found 
in  any  one  state ; and  some  kinds  of  districts  are  found  mainly 
in  certain  geographical  regions.  Thus-  irrigation  districts  are 
mainly  in  the  far  western  states ; and  fire,  lighting,  and  watch  dis- 
tricts are  subdivisions  of  towns  in  some  of  the  New  England  states. 
But  the  number  of  classes  and  the  number  of  special  districts  in 
many  States  add  materially  to  the  list  of  local  authorities. 

Among  the  more  important  special  districts  outside  of  Illi- 
nois may  be  noted  the  metropolitan  park  district  and  the  metro- 
politan water  and  sewerage  district  in  eastern  Massachusetts,  in- 
cluding Boston  and  about  40  neighboring  towns  and  cities ; and 
the  port  of  Portland  (Oregon),  originally  created  to  improve  the 
Columbia  river,  to  which  power  has  been  added  to  control  towage 
and  pilotage,  terminal  facilities,  and  markets,  and  also  authority 
to  own  and  operate  transportation  lines  from  Portland  to  any 
point  in  the  world. 

The  multiplication  of  such  special  districts  not  only  adds  to  the 
complexity  of  local*  government  in  many  states  and  in  the  United 
States  as  a whole ; but  such  districts  necessarily  overlap  and  cover 
the  same  territory  as  the  more  general  local  units.  Where  a num- 
ber of  special  districts  are  formed  over  much  the  same  territory  in 
addition  to  the  usual  county,  town,  city,  and  school  district,  the 
result  is  a confusion  and  chaos  of  local  government  similar  to 
that  in  many  parts  of  Illinois. 


1054 


On  the  other  hand  may  be  noted  instances  where  steps  have 
been  taken  to  combine  overlapping  local  authorities  into  a unified 
system  of  local  government.  In  many  places,  the  powers  and  func- 
tions given  elsewhere  to  special  districts  (such  as  sanitary  or 
park  districts)  are  vested  in  the  city  or  other  existing  municipal 
authorities.  As  already  noted  in  many  states,  city  and  township 
government,  and  in  some  states,  village  and  township  government 
are  combined  in  one  organization.2  Less  frequently  local  school  ad- 
ministration in  cities  has  been  made  a department  of  the  city 
government. 

In  a number  of  the  largest  cities  (such  as  New  York,  Phila- 
delphia, Boston,  Baltimore,  St.  Louis,  Denver,  and  San  Francisco), 
and  for  all  cities  in  Virginia,  city  and  county  government  have 
been  partially  (in  Denver  almost  wholly)  consolidated  in  one 
system.3 


State  supervision.  Local  selection  of  local  officials  is  a highly 
developed  feature  of  public  administration  in  the  United  States ; 
and  is  applied  even  in  the  case  of  officers  whose  duties  are  mainly 
to  act  as  agents  of  the  state  government.  In  this  respect  the  ad- 
ministrative system  of  the  states  contrasts  sharply  with  that  of  the 
national  government,  where  the  local  agents  are  all  appointed  by 
the  central  government. 

But,  beginning  about  the  middle  of  the  nineteenth  century, 
there  has  been  a gradual  development  of  state  supervision  over 
the  functions  of  local  officials ; and  this  tendency  has  increased  in 
recent  years,  along  with  the  expansion  of  the  field  of  direct  ad- 
ministration by  state  officials. 

State  supervision  began  and  has  been  developed  furthest  in 
the  field  of  public  education.  Laws  requiring  the  establishment 
of  public  schools  in  all  localities,  and  providing  for  state  financial 
aid,  have  been  followed  by  state  supervision  through  state  super- 
intendents and  state  departments  of  education,  perhaps  most  highly 
developed  in  the  state  of  New  York.  State  institutions  of  higher 
education  have  also  been  established  in  all  of  the  states. 

State  supervision  and  direct  state  administration  have  also 
been  established  to  a considerable  extent  in  the  fields  of  public 
charity,  public  health,  public  finance  and  public  utilities.  State 
boards  or  departments  have  been  set  up  in  these  fields,  at  first  in 
many  cases  with  authority  only  to  receive  reports  and  conduct  in- 
vestigations ; but  larger  powers  of  supervision  and  control  have 
been  added  in  most  states.  New  York  and  Massachusetts  have 
taken  the  lead  in  this  development ; but  the  other  states  have  fol- 
lowed in  varying  degrees. 

2 Cities  in  New  York,  New  Jersey,  Pennsylvania,  Michigan,  Minnesota,  Wis- 
consin and  the  Dakotas;  boroughs  and  villages  in  New  Jersey,  Pennsylvania, 
Wisconsin,  Minnesota  and  the  Dakotas. 

3 See  Bulletin  No.  11,  on  Local  Governments  in  Chicago  and  Cook  County. 


1055 


Illinois  has  taken  part  in  this  movement  to  a considerable  ex- 
tent ; and  in  most  lines  has  reached  about  the  same  stage  as  the 
average  of  the  important  states,  though  in  some  cases  (as  in  the 
establishment  of  a state  tax  commission)  later  than  in  other 
states.  But  in  one  field — the  supervision  of  local  finances — prac- 
tically nothing  has  been  done  in  Illinois.  The  situation  in  this 
fie(d  in  other  states  may  be  briefly  described. 

As  early  as  1878  Minnesota  established  the  office  of  state  ex- 
aminer with  power  to  examine  the  accounts  of  county  officers. 
A year  later,  Massachusetts  provided  for  the  supervision  and  in- 
spection of  county  accounts,  now  exercised  by  the  state  controller 
of  county  accounts.  In  1890  Wyoming  established  a more  com- 
prehensive supervision  over  local  accounts;  and  this  was  soon 
followed  by  other  neighboring  states — Montana,  the  Dakotas, 
Nebraska,  Kansas,  and  Nevada — and  also  by  Florida.  In  1892, 
New  York  authorized  the  state  comptroller  to  audit*  certain  ac- 
counts of  county  treasurers ; and  later  provision  was  made  for 
uniform  financial  reports  from  counties  and  cities. 

In  1902  Ohio  established  a more  thorough  system  of  public 
accounting,  auditing  and  reporting  for  every  public  office  in  the 
state,  under  the  supervision  of  the  auditor  of  state.  Laws  for  uni- 
form municipal  accounts  and  reports  have  also  been  passed  in  Indi- 
ana, Iowa,  Massachusetts,  California,  Wisconsin,  and  other  states. 
About  half  of  the  states,  including  most  of  the  larger  states,  have 
now  provided  in  some  measure  for  financial  reports  from  loca1 
authorities  to  a state  officer ; and  a considerable  number  have 
also  provided  for  a state  audit  of  local  accounts. 

This  state  supervision  over  local  accounts  has  brought  about 
a marked  improvement  in  local  financial  methods.  In  Wvominp. 
in  which  only  two  counties  had  kept  their  expenses  within  their 
income,  county  expenditures  were,  reduced  and  all  were  brought  to 
a cash  basis.  In  New  York  the  examination  of  c.ountv  accounts 
disclosed  defalcations  or  shortages  in  25  of  the  60  counties.  In 
Ohio  large  amounts  have  been  saved  by  introducing  better  methods 
of  accounting. 

LTnder  present  conditions  in  Illinois,  no  comparison  of  local 
finances  in  different  communities  can  be  made  because  of  the  lack 
of  official  reports  and  the  varving  methods  of  local  officials.  There 
is  no  general  system  of  auditing  the  accounts  of  local  officers ; and 
if  discrepancies  are  discovered  later,  the  only  remedy  is  by  suit 
against  the  officers,  their  bondsmen,  or  perhaps  their  heirs. 

A committee  of  the  General  Assembly  recommended  in  1913 
a law  for  a uniform  system  of  county  accounts  and  the  audit  of 
such  accounts  by  a state  officer,  with  optional  provisions  for  other 
local  authorities.  But  no  action  has  as  yet  been  taken  for  this 
purpose. 


1056 


V.  COMMENTS  AND  CONCLUSIONS. 


Local  areas.  The  provisions  in  sections  1 to  4.  of  Article  X of 
the  constitution  of  1870,  on  the  formation  of  new  counties,  and  on 
changes  in  county  boundaries  and  county  seats,  were  adopted  to  re- 
strict frequent  changes  and  the  creation  of  small  counties  which  had 
been  actively  carried  on  in  the  period  before  1848.  Not  only  have 
these  purposes  been  accomplished ; but  the  existing  provisions  have 
entirely  prevented  the  formation  of  new  counties  and  changes  in 
county  boundaries,  even  where  some  modifications  of  existing  boun- 
daries, may  be  desirable. 

The  general  principle  of  requiring  local  consent  for  the  formation 
of  new  counties  or  changes  in  county  lines  and  county  seats  will  prob- 
ably be  continued ; and  a minimum  limit  on  the  size  of  new  counties 
may  be  retained  as  a general  rule.  But  exception  may  be  made  so  as  to 
permit  large  cities  to  be  organized  as  counties ; and  consideration  may 
be  given  to  the  question  whether  all  of  the  details  in  the  existing  pro- 
visions are  needed,  and  whether  a briefer  and  simpler  statement  of 
the  general  principles  may  not  be  adequate. 

At  the  same  time,  attention  should  be  given  to  the  effect  of  other 
constitutional  provisions  in  promoting  legislation  for  the  multiplication 
of  new  types  of  local  districts.  Such  districts  have  been  formed  in 
many  cases  as  a means  of  evading  the  constitutional  provisions  for 
uniformity  of  taxation  in  each  municipal  corporation  and  imposing 
specific  limitations  on  municipal  debt.  Such  clauses  in  the  present 
constitution  may  be  eliminated  or  modified,  so  as  to  remove  some  of 
the  factors  which  help  to  swell  the  number  of  overlapping  local  areas. 

On  the  other  hand,  the  constitutional  convention  may  consider 
the  desirability  of  some  new  provisions  to  authorize,  and  so  far  as 
may  seem  advisable,  to  promote,  the  union  of  all  small  counties  and  the 
consolidation  of  existing  overlapping  local  districts  into  more  com- 
prehensive and  simpler  areas  of  local  government. 


Detailed  provisions  on  county  government.  The  detailed  pro- 
visions for  the  local  election  of  county  officers  were  adopted  for  the 
purpose  of  extending  the  field  of  local  control  over  such  officers.  But 
these  provisions,  as  well  as  those  relating  to  the  compensation  of  local 
officers,  now  operate  as  restrictions  both  on  the  general  assembly 
and  on  the  local  districts  in  adapting  the  machinery  of  local  govern- 
ment to  local  needs  and  present  conditions.  Attention  may  be  given 
to  the  question  of  relaxing  these  restrictions,  so  as  to  permit  greater 


1057 


freedom  in  the  organization  of  local  government,  either  by  leaving 
the  matter  more  largely  to  the  general  assembly,  subject  perhaps  to 
local  referendum  (at  least  in  cases  of  special  legislation)  or  by  pro- 
visions for  local  home  rule. 

In  a number  of  states  (including  the  New  England  states,  Iowa 
and  Wisconsin)  there  is  little  or  nothing  in  the  state  constitution  on 
county  government,  leaving  the  whole  matter  to  the  state  legislature. 
In  several  other  states  (including  Ohio  and  Minnesota)  there  are 
brief  general  provisions  on  county  and  township  government,  with 
no  such  detail  as  is  found  in  the  constitution  of  Illinois. 

If,  however,  detailed  provisions  are  retained  in  the  constitution, 
attention  should  be  given  to  modifications  and  adjustments  of  the 
present  provisions.  In  the  section  relating  to  township  organization, 
the  requirements  as  to  popular  votes  for  the  adoption  and  abolition  of 
the  township  system  should  be  made  uniform;  and  greater  flexibility 
should  be  permitted  in  the  organization  of  local  government.  The  re- 
quirement in  section  6 that  one  county  commissioner  shall  be  elected 
each  year,  makes  necessary  an  election  in  alternate  years  in  counties 
under  the  county  commissioner  system  for  the  sole  purpose  of  electing 
one  commissioner.  Qualifications  for  county  commissioners  in  Article 
VI,  Section  17  should  be  in  the  article  on  county  or  local  government. 

A reduction  in  the  list  of  elective  county  officers  in  section  8, 
should  be  considered ; and  special  attention  may  be  given  to  the  omis- 
sion of  the  coroner  as  a constitutional  officer,  as  was  done  in  the  con- 
stitution of  1848.  In  several  states,  this  office  has  been  abolished. 
A longer  term  for  the  county  judge  may  be  proposed ; the  population 
limit  for  counties  in  which  a recorder  of  deeds  is  provided  may  be 
harmonized  with  that  for  probate  judges;  and  some  provision  for 
greater  legislative  power  over  the  office  of  sheriff  may  be  advisable,  in 
view  of  judicial  decisions  as  to  the  common  law  powers  of  this 
officer.1 

The  provisions  of  sections  10  and  12  relating  to  the  classification 
of  counties  for  fixing  fees  and  salaries  of  county  officers  should  be 
carefully  examined  in  the  light  of  present  conditions;  and  the  ques- 
tion of  fixing  salary  limits  in  the  constitution  should  be  considered, 

The  proviso  at  the  end  of  section  10  prohibiting  an  increase 
or  diminution  of  compensation  should  be  combined  with  other  pro- 
visions of  the  same  kind  into  one  general  provision. 

In  connection  with  section  13,  providing  for  semi-annual  reports 
of  fees  and  emoluments  by  county  officers,  the  question  should  be 
considered  whether  this  may  not  be  construed  as  a limitation  on  more 
comprehensive  financial  reports,  and  whether  provisions  should  be 
made  for  such  reports  and  their  audit  by  state  authority. 

The  special  provisions  relating  to  Cook  County,  in  sections  7 and 
9,  will  require  thorough  examination  and  revision.  Considerations  and 
suggestions  relating  to  this  are  presented  in  Bulletin  No.  11  on  Local 
Governments  in  Chicago  and  Cook  County. 


1 Dahnke  v.  People,  168  111,  102  (1897);  People  v.  Nellis,  249  111,  12  (1911). 


1058 


Home  rule.  Constitutional  provisions  for  municipal  home  rule 
charters  for  cities,  and  in  some  cases  also  for  villages,  have  been 
adopted  in  thirteen  states.  The  operation  of  these  provisions  and  their 
applicability  to  Illinois  has  been  discussed  in  Bulletin  No.  6 on  Mu- 
nicipal Home  Rule;  and  the  possible  extension  of  such  powers  to  in- 
clude county  government  and  the  consolidation  of  local  governments 
in  Cook  County  have  been  set  forth  in  Bulletin  No.  11  on  Local  Gov- 
ernments in  Chicago  and  Cook  County.  Attention  may,  however,  be 
given  to  the  question  as  to  similar  provisions  for  county  home  rule 
and  the  consolidation  of  local  governments  in  other  parts  of  the  state. 

As  already  noted,  two  states  (California  and  Maryland)  have  re- 
cently adopted  constitutional  provisions  for  county  home  rule  char- 
ters. In  both  of  these  states,  the  constitutional  provisions  contain  a 
good  deal  of  detail  as  to  procedure.  The  California  provisions  also 
contain  much  more  detail  as  to  the  content  of  county  charters  and  as 
to  county  officers ; and  still  further  details  have  been  added  in  a later 
amendment  adopted  to  meet  the  special  conditions  in  Alameda  county. 
The  result  is  to  place  in  the  state  constitution  a good  deal  of  what 
would  more  properly  be  statutory  legislation ; and  in  the  case  of  the 
later  California  amendment  what  is  practically  special  legislation. 
Four  counties  in  California  have  adopted  home  rule  charters ; but 
no  county  in  Maryland  has  thus  far  exercised  this  power. 

A shorter  proposal  for  county  home  rule  (although  also  including 
details  of  procedure)  has  been  introduced  in  the  Ohio  general  assembly, 
with  additional  provisions  for  the  consolidation  of  local  governments 
in  counties  including  large  cities.  But  this  proposal  makes  no  distinc- 
tion between  the  powers  of  counties  and  those  of  cities  under  the  mu- 
nicipal home  rule  provisions  of  that  state. 

In  support  of  constitutional  provisions  for  county  home  rule,  it 
may  be  said  that  counties  in  Illinois  (as  in  other  states)  differ  so  widely 
in  size  and  population  and  the  importance  of  their  county  and  other 
local  governments,  that  their  detailed  regulation  by  general  law  makes 
impossible  a satisfactory  organization  in  many  localities ; and  that  a 
locally  framed  and  adopted  system  of  organization  will  be  more  likely 
to  be  adapted  to  local  conditions.  On  the  olher  hand,  it  may  be  urged 
that  county  officers  are  to  a large  extent  primarily  local  agents  of  the 
state  government ; and  that  they  should,  therefore,  be  under  more  di- 
rect state  control  than  may  be  necessary  in  the  case  of  cities  and  vil- 
lages, which  are  to  a large  extent  organs  for  distinctly  local  purposes. 
If,  however,  state  authority  over  the  state  functions  of  county  officers 
is  adequately  protected,  local  control  over  the  organization  of  county 
officers  would  seem  to  be  less  open  to  objection  than  the  present  system 
of  local  election  of  such  officers  without  adequate  state  supervision. 

Three  main  types  of  counties  may  be  recognized  in  Illinois.  Most 
counties  are  mainly  agricultural  in  character,  with  some  villages  and 
small  cities ; but  even  these  vary  to  a considerable  extent  in  area  and 
population.  In  sharp  contrast  with  these  is  the  metropolitan  county  of 
Cook,  with  more  than  2,500,000  population,  mostly  in  the  city  of  Chi- 
cago, but  with  80  other  cities  and  villages  as  well  as  several  hundred 
other  local  authorities.  An  intermediate  type  is  the  counties  contain- 


1059 


ing  one  or  more  cities  of  considerable  size ; and  in  which  the  urban  pop- 
ulation is  a majority  of  the  total  population.  These  counties  in  turn  pre- 
sent a number  of  variations  in  size  and  the  distribution  of  population. 
Provisions  for  constitutional  home  rule  would  permit  different  plans  of 
organization  to  be  adopted,  not  only  for  the  main  types  of  counties,  but 
also  adapted  to  meet  the  different  conditions  within  each  type. 

If  a system  of  county  home  rule  is  considered,  it  will  be  advisable 
on  the  one  hand  to  avoid  detailed  provisions  such  as  those  in  the  Cali- 
fornia constitution,  and  on  the  other  hand  to  avoid  the  vagueness  of 
the  proposed  Ohio  provisions.  If  a detailed  enumeration  of  county 
powers  and  duties  in  the  constitution  is  to  be  avoided,  it  will  be  neces- 
sary to  recognize  clearly  the  authority  of  the  general  assembly  to  pre- 
scribe duties  and  to  define  the  powers  which  must  be  provided  for  in 
home  rule  county  charters.  Provision  may  also  be  made  by  which,  in 
connection  with  county  home  rule  charters,  the  machinery  of  local  gov- 
ernment in  any  county  may  be  more  effectively  co-ordinated  and  sim- 
plified. This  may  be  done  by  authorizing  the  consolidation  of  local 
governments  (for  large  city  counties)  or  the  adoption  of  a federated 
system,  as  has  been  proposed  for  Alameda  county,  California. 

Proposals  for  county  home  rule  are  intended  primarily  to  obtain 
systems  of  county  government  more  readily  adapted  to  the  needs  of 
counties  of  varying  sizes  and  interests.  The  purpose  to  be  accom- 
plished may  of  course  also  be  attained  by  omitting  detailed  regulations 
from  the  constitution,  leaving  to  the  general  assembly  wider  power 
than  at  present  to  deal  with  the  county  problem,  through  laws  generally 
applicable  to  all  counties  or  by  laws  subject  to  a local  referendum. 


APPENDIX  NO.  1.  REFERENCES. 


American  Political  Science  Review. 

VII.  234  (May  1913),  County  Legislation. 

VIII.  411  (August  1913)  California’s  Experiment  with  (County) 
Home  Rule  Charters. 

IX.  Ill  (Feb.  1915),  The  Reorganization  of  County  Govern- 
ment in  1913  and  1914. 

XII.  678  (Nov.  1918)  Special  Municipal  Corporations. 

Annals  of  the  American  Academy  of  Political  and  Social  Science, 
Vol.  47  (May,  1913),  County  Government. 

Vol.  64  (March,  1916),  Movement  for  Responsible  County  Gov- 
ernment. 

Buck,  G.  S.  The  Organization  of  County  Government.  Academy 
of  Political  Science  Proceedings,  V.  342,  (Jan.  1915). 

Crandall,  C.  A.  The  Relation  of  Cities  and  Counties  to  the  State. 

Case  and  Comment,  XXI,  288  (Sept.  1914). 

Cyclopedia  of  American  Government  I,  492.  County  Government. 
Dwyer,  W.  A.  Putting  Character  into  Counties,  World’s  Work 
XXX,  605  (Sept.  1915). 

Fairlie,  John  A.  Local  Government  in  Counties,  Towns  and  Vil- 
lages (2d  ed.  1914). 

Fairlie,  John  A.  Town  and  County  Government  in  Illinois.  A re- 
port prepared  for  the  Joint  Committee  of  the  Forty-Seventh  Gen- 
eral Assembly  on  County  and  Township  Organization,  and 
Roads,  Highways  and  Bridges  (1913). 

Gilbertson,  H.  S.  The  County.  The  “Dark  Continent”  of  Amer- 
ican Politics.  (1917). 

James,  H.  G.  County  Government  in  Texas.  Univ.  of  Texas  Bul- 
letin, June  5,  1917. 

King,  C.  L.  Chairman.  Report  of  the  City-County  Committee  of 
the  American  Political  Science  Association.  Proceedings  at  the 
Fifth  Annual  Meeting  (1914). 

Massachusetts  Constitutional  Convention. 

Bulletin  No.  8.  County  Government  in  Massachusetts.  (1917.) 
New  York  Constitutional  Convention  Commission.  County  Gov- 
ernment (1915). 

North  Carolina  Club  Year  Book.  County  Government  and  County 
Affairs  in  North  Carolina  (1918). 


1061 


Proceedings  of  Conferences  for  the  Study  and  Reform  of  County 
Government.  Dec.  1913;  Jan.  1914. 

Proceedings  of  Conferences  for  Better  County  Government  in  New 
York  State,  Nov.  1914;  Dec.  1916. 

Review  of  Reviews,  vol.  46,  60J  (Nov.  1912).  The  Discovery  of 
the  County  Problem. 

Vol.  55,  185  (Feb.  1917).  Running  States  and  Counties  on  Busi- 
ness Lines. 

Russell  Sage  Foundation.  City  and  County  Administration  in 
Springfield,  111.,  Oct.  1917. 


APPENDIX  NO.  2.  ILLINOIS  COUNTIES. 


List  of  Illinois  Counties  with  areas , population  in  ipio,  and  type  of 

county  government. 


Area 

Population 

County. 

Sq.  Miles. 

in  1910. 

Adams  

842 

64,588 

Alexander  ......... 

226 

22,741 

Bond  

388 

17,075 

Boone  

293 

15,481 

Brown  

......  '297 

10,397 

Bureau  

881 

43,975 

Calhoun  

256 

8,610 

Carroll  

453 

18,035 

Cass  

371 

17,372 

Champaign  

1,043 

51,829 

Christian  

700 

34,594 

Clark  

493 

23,517 

Clay  

462 

18,661 

Clinton  

22,832 

Coles  

525 

34,517 

Cook  

933 

2,405,233 

Crawford  

453 

26,281 

Cumberland  

353 

14,281 

DeKalb  

638 

33,457 

DeWitt  

18,906 

Douglas  

417 

19,591 

DuPage  

345 

33,432 

Edgar  

621 

27,336 

Edwards  

238 

10,049 

Effingham  

511 

20,055 

Fayette  

729 

28,075 

Ford  

500 

17,096 

Franklin  

445 

25,943 

Fulton  

884 

49,549 

Gallatin  

338 

14,628 

Greene  

515 

22,363 

Grundy  

433 

24,162 

Hamilton  

455 

18,227 

Hancock  

780 

30,638 

Hardin  

185 

7,015 

Henderson  

376 

9,724 

Henry  

824 

41,736 

Iroquois  

1,121 

35,543 

Jackson  

588 

35.143 

Jasper  

508 

18,157 

Jefferson  

603 

29,111 

Jersey  

367 

13,954 

Jo  Daviess  

623 

22,657 

Johnson  

348 

14,331  * 

Kane  

527 

91,862 

Kankakee  

668 

40,752 

Kendall  

324 

10,777 

Knox  

711 

46,159 

Lake  

455 

55,058 

La  Salle  

1,146 

90,132 

Lawrence  

358 

22,661 

Lee  

742 

27,750 

Livingston  

1,043 

40,465 

Logan  

617 

30,216 

McDonough  

588 

26,887 

McHenry  

620 

32,509 

McLean  

1,191 

68,008 

Macon  . . . 

585 

54,186 

Macoupin  

860 

50,685 

Madison  

737 

89,847 

Form  of  County  Organization. 
Township  organization. 

County  commissioners. 

Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 

County  commissioners. 

Township  organization. 

County  commissioners. 

Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 

Special  Bd.  County  Commrs. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 

County  commissioners. 

Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 

County  commissioners. 

Township  organization. 
Township  organization. 
Township  organization. 

Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 

County  commissioners. 

Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 

Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 


1063 


Illinois  Counties  with  areas,  population  and  type  of  county  govern- 
ment— Concluded. 


County 

Marion 

Marshall 

Mason  

Massac  .... 
Menard 

Mercer 

Monroe 

Montgomery 

Morgan 

Moultrie 

Ogle  

Peoria  

Perry  

Piatt  

Pike  

Pope  

Pulaski 
Putnam 
Randolph  . . 
Richland  . . . 
Rock  Island 
St.  Clair  . . . 

Saline  

Sangamon  . 
Schuyler 

Scott  

Shelby  

Stark  

Stephenson 
Tazewell  . . . 

Union  

Vermilion  . 
Wabash 
Warren 
Washington 
Wayne  .... 

White  

Whiteside  . 

Will  

Williamson 
Winnebago  . 
Woodford  . . 


Sq.  Miles,  in  1910. 

Area  Population  Form  of  County  Organization. 


569 

396 

555 

240 

317 

540 

389 

689 

576 

338 

756 

636 

451 

451 

786 

385 

190 

173 

587 

357 

424 

663 

399 

876 

432 

249 

772 

290 

559 

647 

403 

921 

220 

546 

561 

733 

507 

679 

844 

449 

529 

528 


35,094 

15,679 

17,377 

14,200 

12,796 

19,723 

13,508 

35,311 

34,420 

14,630 

27,864 

100,255 

22,088 

16,376 

28,622 

11,215 

15,650 

7,561 

29,120 

15,970 

70,404 

119,870 

30,204 

91,024 

14,852 

10,067 

31,693 

10.098 
36,821 
34,027 
21,856 
77,996 
14,913 
23,313 
18,759 
25,697 
23,052 
34,507 
84,371 

45.098 
63,153 
20,506 


Township  organization. 
Township  organization. 
Township  organization. 
County  commissioners. 
County  commissioners. 
Towmship  organization. 
County  commissioners. 
Township  organization. 
County  commissioners. 
Township  organization. 
Township  organization. 
Township  organization. 
County  commissioners. 
Township  organization. 
Township  organization. 
County  commissioners. 
County  commissioners. 
Township  organization. 
County  commissioners. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
County  commissioners. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
County  commissioners. 
Township  organization. 
County  commissioners. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 
Township  organization. 


Total 


56,043 


5,638,533 


1064 


APPENDIX  NO.  3.  CONSTITUTIONAL  PROVISIONS. 


1.  Illinois  constitution,  Article  X,  Counties. 

Section  1.  No  new  county  shall  be  formed  or  established  by  the 
General  Assembly  which  will  reduce  the  county  or  counties,  or  either 
of  them,  from  which  it  shall  be  taken  to  less  contents  than  four  hun- 
dred square  miles ; nor  shall  any  county  be  formed  of  less  contents ; 
nor  shall  any  line  thereof  pass  within  less  than  ten  miles  of  any  county 
seat  of  the  county  or  counties  proposed  to  be  divided. 

Sec.  2.  No  county  shall  be  divided,  or  have  any  part  stricken 
therefrom  without  submitting  the  question  to  a vote  of  the  people  of 
the  county,  nor  unless  a majority  of  all  the  legal  voters  of  the  county 
voting  on  the  question  shall  vote  for  the  same. 

Sec.  3.  There  shall  be  no  territory  stricken  from  any  county  un- 
less a majority  of  the  voters  living  in  such  territory  shall  petition  for 
such  division ; and  no  territory  shall  be  added  to  any  county  without 
the  consent  of  the  majority  of  the  voters  of  the  county  to  which  it  is 
proposed  to  be  added.  But  the  portion  so  stricken  off  and  added  to 
another  county,  or  formed  in  whole  or  in  part  into  a new  county,  shall 
be  holden  for  and  obliged  to  pay  its  proportion  of  the  indebtedness 
of  the  county  from  which  it  has  been  taken. 

Sec.  4.  No  county  seat  shall  be  removed  until  the  point  to  which 
it  is  proposed  to  remove  shall  be  fixed  in  pursuance  of  law,  and  three- 
fifths  of  the  voters  of  the  county,  to  be  ascertained  in  such  manner  as 
shall  be  provided  by  general  law,  shall  have  voted  in  favor  of  its  re- 
moval to  such  point;  and  no  person  shall  vote  on  such  question  who 
has  not  resided  in  the  county  six  months  and  in  the  election  precinct 
ninety  days  next  preceding  such  election.  The  question  of  the  removal 
of  a county  seat  shall  not  be  oftener  submitted  than  once  in  ten  years 
to  a vote  of  the  people.  But  when  an  attempt  is  made  to  remove  a 
county  seat  to  a point  nearer  to  the  center  of  the  county,  then  a ma- 
jority vote  shall  be  necessary. 

Sec.  5.  The  General  Assembly  shall  provide,  by  general  law,  for 
township  organization,  under  which  any  county  may  organize  when- 
ever a majority  of  the  legal  voters  of  such  county,  voting  at  any  gen- 
eral election,  shall  so  determine ; and  whenever  any  county  shall  adopt 
township  organization,  so  much  of  this  constitution  as  provides  for 
the  management  of  the  fiscal  concerns  of  the  said  county  by  the  board 
of  county  commissioners,  may  be  dispensed  with,  and  the  affairs 
of  said  county  may  be  transacted  in  such  manner  as  the  General  As- 
sembly may  provide.  And  in  any  county  that  shall  have  adopted  a 
township  organization,  the  question  of  continuing  the  same  may  be 
submitted  to  a vote  of  the  electors  of  such  county,  at  a general  elec- 


1065 


tion,  in  the  manner  that  now  is  or  may  be  provided  by  law ; and  if  a 
majority  of  all  the  votes  cast  upon  that  question  shall  be  against 
township  organization,  then  such  organization  shall  cease  in  said 
county ; and  all  laws  in  force  in  relation  to  counties  not  having  town- 
ship organization  shall  immediately  take  effect  and  be  in  force  in  such 
county.  No  two  townships  shall  have  the  same  name,  and  the  day  of 
holding  the  annual  township  meeting  shall  be  uniform  throughout  the 
State. 

Sec.  6.  At  the  first  election  of  county  judges  under  this  consti- 
tution, there  shall  be  elected  in  each  of  the  counties  in  this  State  not 
under  township  organization,  three  officers,  who  shall  be  styled,  “The 
Board  of  County  Commissioners,”  who  shall  hold  sessions  for  the 
transaction  of  county  business  as  shall  be  provided  by  law.  One  of 
said  commissioners  shall  hold  his  office  for  one  year,  one  for  two  years 
and  one  for  three  years,  to  be  determined  by  lot ; and  every  year  there- 
after one  such  officer  shall  be  elected  in  each  of  said  counties  for  the 
term  of  three  years. 

Sec.  7.  The  county  affairs  of  Cook  County  shall  be  managed  by 
a board  of  commissioners  of  fifteen  persons,  ten  of  whom  shall  be 
elected  from  the  city  of  Chicago  and  five  from  towns  outside  of  said 
city,  in  such  manner  as  may  be  provided  by  law. 

Sec.  8.  In  each  county  there  shall  be  elected  the  following  county 
officers,  at  the  general  election  to  be  held  on  the  Tuesday  after  the 
first  Monday  in  November,  A.  D.  1882 : A county  judge,  county  clerk, 
sheriff  and  treasurer,  and  at  the  election  to  be  held  on  the  Tuesday 
after  the  first  Monday  in  November,  A.  D.  1884,  a coroner  and  clerk 
of  the  circuit  court  (who  may  be  ex  officio  recorder  of  deeds,  except 
in  counties  having  60,000  and  more  inhabitants,  in  which  counties  a 
recorder  of  deeds  shall  be  elected  at  the  general  election  in  1884). 
Each  of  said  officers  shall  enter  upon  the  duties  of  his  office,  respec- 
tively, on  the  first  Monday  of  December  after  his  election,  and  they 
shall  hold  their  respective  offices  for  the  term  of  four  years,  and  until 
their  successors  are  elected  and  qualified:  Provided,  that  no  person 

having  once  been  elected  to  the  office  of  sheriff  or  treasurer  shall  be 
eligible  to  re-election  to  said  office  for  four  years  after  the  expiration 
of  the  term  for  which  he  shall  have  been  elected. 

Sec  9.  The  clerks  of  all  courts  of  record,  the  treasurer,  sheriff, 
coroner  and  recorder  of  deeds  of  Cook  County,  shall  receive  as  their 
only  compensation  for  their  services,  salaries  to  be  fixed  by  law,  which 
shall  in  no  case  be  as  much  as  the  lawful  compensation  of  a judge  of 
the  circuit  court  of  said  county  and  shall  be  paid  respectively  only  out 
of  the  fees  of  the  office  actually  collected.  All  fees,  perquisites  and 
emoluments  (above  the  amount  of  said  salaries)  shall  be  paid  into 
the  county  treasury.  The  number  of  the  deputies  and  assistants  of 
such  officers  shall  be  determined  by  rule  of  the  circuit  court,  to  be  en- 
tered of  record,  and  their  compensation  shall  be  determined  by  the 
county  board. 

Sec.  10.  The  county  board,  except  as  provided  in  section  9 of 
this  article,  shall  fix  the  compensation  of  all  county  officers,  with  the 
amount  of  their  necessary  clerk  hire,  stationery,  fuel  and  other  ex- 


1066 


penses,  and  in  all  cases  where  fees  are  provided  for,  said  compensation 
shall  be  paid  only  out  of,  and  shall  in  no  instance  exceed,  the  fees 
actually  collected;  they  shall  not  allow  either'of  them  more  per  annum 
than  fifteen  hundred  dollars,  in  counties  not  exceeding  twenty  thousand 
inhabitants ; two  thousand  dollars,  in  counties  containing  twenty  thou- 
sand and  not  exceeding  thirty  thousand  inhabitants;  twenty-five  hun- 
dred dollars,  in  counties  containing  thirty  thousand  and  not  exceeding 
fifty  thousand  inhabitants;  three  thousand  dollars  in  counties  contain- 
ing fifty  thousand  and  not  exceeding  seventy  thousand  inhabitants; 
thirty-five  hundred  dollars,  in  counties  containing  seventy  thousand 
and  not  exceeding  one  hundred  thousand  inhabitants ; and  four  thou- 
sand dollars,  in  counties  containing  over  one  hundred  thousand,  and 
not  exceeding  two  hundred  and  fifty  thousand  inhabitants;  and  not 
more  than  one  thousand  dollars  additional  compensation  for  each  ad- 
ditional one  hundred  thousand  inhabitants : Provided,  that  the  com- 

pensation of  no  officer  shall  be  increased  or  diminished  during  his  term 
of  office.  All  fees  or  allowances  by  them  received,  in  excess  of  their 
said  compensation,  shall  be  paid  into  the  county  treasury. 

Sec.  11.  The  fees  of  township  officers,  and  of  each  class  of 
county  officers,  shall  be  uniform  in  the  class  of  counties  to  which  they 
respectively  belong.  The  compensation  herein  provided  for  shall  apply 
only  to  officers  hereafter  elected,  but  all  fees  established  by  special 
laws  shall  cease  at  the  adoption  of  this  constitution,  and  such  officers 
shall  receive  only  such  fees  as  are  provided  by  general  law. 

Sec.  12.  All  laws  fixing  the  fees  of  State,  county  and  township 
officers  shall  terminate  with  the  terms  respectively  of  those  who  may 
be  in  office  at  the  meeting  of  the  first  General  Assembly  after  the  adop- 
tion of  this  Constitution;  and  the  General  Assembly  shall,  by  general 
law,  uniform  in  its  operation,  provide  for  and  regulate  the  fees  of  said 
officers  and  their  successors,  so  as  to  reduce  the  same  to  a reasonable 
compensation  for  services  actually  rendered.  But  the  General  Assembly 
may,  by  general  law,  classify  the  counties  by  population  into  not  more 
than  three  classes  and  regulate  the  fees  according  to  class.  This  article 
shall  not  be  construed  as  depriving  the  General  Assembly  of  the  power 
to  reduce  the  fees  of  existing  officers. 

Sec.  13.  Every  person  who  is  elected  or  appointed  to  any  office 
in  this  State,  who  shall  be  paid  in  whole  or  in  part  by  fees,  shall  be  re- 
quired by  law  to  make  a semi-annual  report,  under  oath,  to  some  officer 
to  be  designated  by  law,  of  all  his  fees  and  emoluments. 


2.  Maryland  constitution,  amendment  of  1915,  Article  XIA,  Local 
Legislation. 

Sec.  1.  On  demand  of  the  Mayor  of  Baltimore  and  City  Council 
of  the  City  of  Baltimore,  or  on  petition  bearing  the  signatures  of  not 
less  than  20  per  cent  of  the  registered  voters  of  said  city  or  any  county 
(provided,  however,  that  in  any  case  10,000  signatures  shall  be  suffi- 
cient to  complete  a petition),  the  Board  of  Election  Supervisors  of  said 
city  or  county  shall  provide  at  the  next  general  or  Congressional  elec- 


1067 


tion,  occurring  after  such  demand  or  the  filing  of  such  petition,  for 
the  election  of  a charter  board  of  eleven  registered  voters  of  said  city 
or  five  registered  voters  in  any  such  counties.  Nominations  for  mem- 
bers for  said  charter  board  may  be  made  not  less  than  forty  days  prior 
to  said  election  by  the  Mayor  of  Baltimore  and  City  Council  of  the 
city  of  Baltimore  or  the  County  Commissioners  of  such  county,  or  not 
less  than  twenty  days  prior  to  said  election  by  petition  bearing  the 
signatures  written  in  their  own  handwriting  (and  not  by  their  mark) 
of  not  less  than  5 per  cent  of  the  registered  voters  of  the  said  City  of 
Baltimore  or  said  county ; provided,  that  in  any  case  two  thousand 
signatures  of  registered  voters  shall  be  sufficient  to  complete  any  such 
nominating  petition,  and  if  not  more  than  eleven  registered  voters  of 
the  city  of  Baltimore  or  not  more  than  five  registered  voters  in  anv  such 
county  are  so  nominated  their  names  shall  not  be  printed  on  the  ballot, 
but  said  eleven  registered  voters  in  the  citv  of  Baltimore  or  five  in  such 
county  shall  constitute  said  charter  board  from  and  after  the  date  of 
said  election.  At  said  election  the  ballot  shall  contain  the  names  of 
said  nominees  in  alphabetical  order  without  any  indication  of  the 
source  of  their  nomination,  and  shall  also  be  so  arranged  as  to  permit 
the  voter  to  vote  for  or  against  the  creation  of  said  charter  board,  but 
the  vote  cast  against  said  creation  shall  not  be  held  to  bar  the  voter 
from  expressing  his  choice  among  the  nominees  for  said  board,  and  if 
the  majority  of  the  votes  cast  for  and  against  the  creation  of  said 
charter  board  shall  be  against  said  creation  the  election  of  the  members 
of  said  charter  board  shall  be  void;  but  if  such  majority  shall  be  in 
favor  of  the  creation  of  said  charter  board,  then  and  in  that  event  the 
eleven  nominees  of  the  city  of  Baltimore  or  five  members  in  the  county 
receiving  the  largest  number  of  votes  shall  constitute  the  charter 
board,  and  said  charter  board,  or  a majority  thereof,  shall  prepare 
within  six  months  from  the  date  of  said  election  a charter  or  form  of 
government  for  said  city  or  such  countv  and  present  the  same  to  the 
Mayor  of  Baltimore  or  President  of  the  Board  of  County  Commis- 
sioners of  such  county,  who  shall  publish  the  same  in  at  least  two 
newspapers  of  general  circulation  published  in  said  city  of  Baltimore 
or  countv  within  thirty  days  after  it  shall  be  reported  to  him.  Such 
charter  shall  be  submitted  to  the  voters  of  said  city  or  county  at  the 
next  general  or  Congressional  election  after  the  report  of  said  charter 
to  said  Mayor  of  Baltimore  or  President  of  the  Board  of  County  Com- 
missioners: and  if  a majoritv  of  the  votes  cast  for  and  against  the 
adoption  of  said  charter  shall  be  in  favor  of  such  adoption,  the  said 
charter  from  and  after  the  thirtieth  day  from  the  date  of  such  election 
shall  become  the  law  of  said  city  or  county,  subject  only  to  the  Consti- 
tution and  Public  General  Laws  of  this  State,  and  any  Public  Local 
Laws  inconsistent  with  the  provisions  of  said  charter  and  former 
charter  of  said  city  of  Baltimore  or  county  shall  be  thereby  repealed. 

Sec.  2.  The  General  Assembly  at  its  first  session  after  the  adop- 
tion of  this  amendment  shall,  by  Public  General  Law,  provide  a grant 
of  express  powers  for  such  countv  or  counties  as  may  thereafter  form 
a charter  under  the  provisions  of  this  Article.  Such  express  powers 
granted  to  the  counties  and  the  powers  heretofore  granted  to  the  city 


1068 


of  Baltimore,  as  set  forth  in  Article  4,  Section  6,  Public  Local  Laws 
of  Maryland,  shall  not  be  enlarged  or  extended  by  any  charter  formed 
under  the  provisions  of  this  Article,  but  such  powers  may  be  extended, 
modified,  amended  or  repealed  by  the  General  Assembly. 

Sec.  3.  Every  charter  so  formed  shall  provide  for  an  elective 
legislative  body  in  which  shall  be  vested  the  law-making  power  of  said 
city  or  county.  Such  legislative  body  in  the  city  of  Baltimore  shall  be 
known  as  the  City  Council  of  the  city  of  Baltimore,  and  in  any  county 
shall  be  known  as  the  County  Council  of  the  county.  The  chief  execu- 
tive officer,  if  any  such  charter  shall  provide  for  the  election  of  such 
executive  officer,  or  the  presiding  officer  of  said  legislative  body,  if 
such  charter  shall  not  provide  for  the  election  of  a chief  executive 
officer,  shall  be  known  in  the  city  of  Baltimore  as  Mayor  of  Baltimore, 
and  in  any  county  as  the  President  of  the  County  Council  of  the 
county,  and  all  references  in  the  Constitution  and  laws  of  this  State  to 
the  Mayor  of  Baltimore  and  City  Council  of  the  city  of  Baltimore  and 
to  the  President  and  County  Commissioners  of  the  counties  shall  be 
construed  to  refer  to  the  Mayor  of  Baltimore  and  City  Council  of  the 
city  of  Baltimore  and  to  the  President  and  County  Council  herein  pro- 
vided for,  whenever  such  construction  would  be  reasonable.  From  and 
after  the  adoption  of  a charter  by  the  city  of  Baltimore,  or  any  county 
of  this  State,  as  hereinbefore  provided,  the  Mayor  of  Baltimore  and 
City  Council  of  the  city  of  Baltimore  or  the  County  Council  of  said 
county,  subject  to  the  Constitution  and  Public  General  Laws  of  this 
State,  shall  have  full  power  to  enact  local  laws  of  said  city  or  county, 
including  the  power  to  repeal  or  amend  Local  Laws  of  said  city  or 
county  enacted  by  the  General  Assembly,  upon  all  matters  covered  by 
the  express  powers  granted  as  above  provided ; provided,  that  nothing 
herein  contained  shall  be  construed  to  authorize  or  empower  the 
County  Council  of  any  county  in  this  State  to  enact  laws  or  regulations 
for  any  incorporated  town,  village,  or  municipality  in  said  county,  on 
any  matter  covered  by  the  powers  granted  to  said  town,  village,  or 
municipality  by  the  Act  incorporating  it,  or  any  subsequent  Act  or 
Acts  amendatory  thereto.  Provided,  however,  that  the  charters  of  the 
various  counties  shall  provide  that  the  County  Council  of  the  counties 
shall  not  sit  more  than  one  month  in  each  year  for  the  purpose  of 
enacting  legislation  for  such  counties,  and  all  legislation  shall  be  en- 
acted during  the  month  so  designated  for  that  purpose  in  the  charter, 
and  all  laws  and  ordinances  so  enacted  shall  be  published  once  a week 
for  three  successive  weeks  in  at  least  one  newspaper  published  in  such 
counties,  so  that  the  taxpayers  and  citizens  may  have  notice  thereof. 
This  provision  shall  not  apply  to  Baltimore  city.  All  such  local  laws 
enacted  by  the  Mayor  of  Baltimore  and  City  Council  of  the  city  of 
Baltimore  or  the  Council  of  the  counties,  hereinbefore  provided,  shall 
be  subject  to  the  same  rules  of  interpretation  as  those  now  applicable 
to  the  Public  Local  Laws  of  this  State,  except  that  in  case  of  any  con- 
flict between  said  Local  Law  and  any  Public  General  Law  now  or 
hereafter  enacted,  the  Public  General  Law  shall  control. 

Sec.  4.  From  and  after  the  adoption  of  a charter  under  the  pro- 
visions of  this  Article  by  the  city  of  Baltimore  or  any  county  of  this 


1069 


State,  no  Public  Local  Law  shall  be  enacted  by  the  General  Assembly 
for  said  city  or  county  on  any  subject  covered  by  the  express  powers 
granted  as  above  provided.  Any  law  so  drawn  as  to  apply  to  two  or 
more  of  the  geographical  sub-divisions  of  this  State  shall  not  be 
deemed  a Local  Law,  within  the  meaning  of  this  Act.  The  term  “geo- 
graphical sub-division”  herein  used  shall  be  taken  to  mean  the  city  of 
Baltimore  or  any  of  the  counties  of  this  State. 

Sec.  5.  Amendments  to  any  charter  adopted  by  the  city  of  Balti- 
more or  by  any  county  of  this  State  under  the  provisions  of  this 
Article  may  be  proposed  by  a resolution  of  the  Mayor  of  Baltimore  and 
the  City  Council  of  said  city  of  Baltimore,  or  the  Council  of  said 
county,  or  by  a petition  signed  by  not  less  than  20  per  cent  of  the 
registered  voters  of  said  city  or  county,  provided,  however,  that  in  any 
case  10,000  signatures  shall  be  sufficient  to  complete  a petition,  and 
filed  with  the  Mayor  of  Baltimore  or  the  President  of  the  County 
Council,  and  when  so  proposed  shall  be  submitted  to  the  voters  of  said 
city  or  county  at  the  next  general  or  Congressional  election  occurring 
after  the  passage  of  said  resolution,  or  the  filing  of  said  petition;  and 
if  at  said  election  the  majority  of  the  votes  cast  for  and  against  said 
amendments  shall  be  in  favor  thereof,  said  amendment  shall  be  adopted 
and  become  a part  of  the  charter  of  said  city  or  county  from  and  after 
the  thirtieth  day  after  said  election.  Said  amendments  shall  be  pub- 
lished by  said  Mayor  of  Baltimore  or  President  of  the  County  Council 
once  a week  for  five  successive  weeks  prior  to  said  election  in  at  least 
one  newspaper  published  in  said  city  or  county. 

Sec.  6.  The  power  heretofore  conferred  upon  the  General  As- 
sembly to  prescribe  the  number,  compensation,  powers  and  duties  of 
the  County  Commissioners  in  each  county,  and  the  power  to  make 
changes  in  Sections  1 to  6,  inclusive,  Article  XI  of  this  Constitution, 
when  expressly  granted  as  hereinbefore  provided,  are  hereby  trans- 
ferred to  the  voters  of  each  county  and  the  voters  of  city  of  Baltimore, 
respectively,  provided,  that  said  powers  so  transferred  shall  be  exer- 
cised only  by  the  adoption  or  amendment  of  a charter  as  hereinbefore 
provided ; and  provided  further,  that  this  Article  shall  not  be  construed 
to  authorize  the  exercise  of  any  powers  in  excess  of  those  conferred  by 
the  Legislature  upon  said  counties  or  city  as  this  Article  sets  forth. 

Sec.  7.  The  word  “Petition,”  as  used  in  this  Article,  means  one 
or  more  sheets  written  or  printed  or  partly  written  and  partly  printed ; 
“Signature”  means  the  signature  of  a registered  voter  written  by  him- 
self in  his  own  handwriting  (and  not  by  his  mark),  together  with  the 
ward  or  district  and  precinct  in  which  he  is  registered.  The  authen- 
ticity of  such  signatures  and  the  fact  that  the  persons  so  signing  are 
registered  voters  shall  be  evidenced  by  the  affidavit  of  one  or  more 
registered  voters  of  the  city  or  county  in  which  said  voters  so  signing 
are  registered,  and  one  affidavit  may  apply  to  or  cover  any  number  of 
signatures  to  such  petition.  The  false  signing  of  any  name,  or  the 
signing  of  any  fictitious  name  to  said  petition  shall  be  forgery,  and  the 
making  of  any  false  affidavit  in  connection  with  said  petition  shall  be 
perjury. 


1070 


3.  Michigan  constitution,  Article  VIII,  Local  Government. 

Sec.  1.  Each  organized  county  shall  be  a body  corporate,  with 
such  powers  and  immunities  as  shall  be  established  by  law.  All  suits 
and  proceedings  by  or  against  a county  shall  be  in  the  name  thereof. 

Sec.  2.  No  organized  county  shall  be  reduced  by  the  organization 
of  new  counties  to  less  than  sixteen  townships  as  surveyed  by  the 
United  States,  unless  in  pursuance  of  law  a majority  of  electors  voting 
on  the  question  in  each  county  to  be  affected  thereby  shall  so  decide. 
When  any  city  has  attained  a population  of  one  hundred  thousand  in- 
habitants, the  legislature  may  organize  it  into  a separate  county  with- 
out reference  to  geographical  extent,  if  a majority  of  the  electors  of 
such  city  and  of  the  remainder  of  the  county  in  which  such  city  may 
be  situated  voting  on  the  question  shall  each  determine  in  favor  of  or- 
ganizing said  city  into  a separate  county. 

Sec.  3.  There  shall  be  elected  biennially  in  each  organized  county 
a sheriff,  a county  clerk,  a county  treasurer,  a register  of  deeds  and  a 
prosecuting  attorney,  whose  duties  and  powers  shall  be  prescribed  by 
law.  The  board  of  supervisors  in  any  county  may  unite  the  offices  of 
county  clerk  and  register  of  deeds  in  one  office  or  separate  the  same 
at  pleasure. 

Sec.  4.  The  sheriff,  county  clerk,  county  treasurer,  judge  of  pro- 
bate and  register  of  deeds  shall  hold  their  offices  at  the  county  seat. 

Sec.  5.  The  sheriff  shall  hold  no  other  office,  and  shall  be  in- 
capable of  holding  the  office  of  sheriff  longer  than  four  in  any  period 
of  six  years.  He  may  be  required  by  law  to  renew  his  security  from 
time  to  time,  and  in  default  of  giving  such  security,  his  office  shall  be 
deemed  vacant.  The  county  shall  never  be  responsible  for  his  acts. 

Sec.  6.  The  legislature  shall  by  general  law  provide  for  the  ap- 
pointment of  a board  of  jury  commissioners  in  each  county ; but  such 
law  shall  not  become  operative  in  any  county  until  a majority  of  the 
electors  of  the  county  voting  thereon  shall  so  decide. 

Sec.  7.  A board  of  supervisors,  consisting  of  one  from  each  or- 
ganized township,  shall  be  established  in  each  county,  with  such  powers 
as  shall  be  prescribed  by  law.  Cities  shall  have  such  representation  in 
the  boards  of  supervisors  of  the  counties  in  which  they  are  situated  as 
may  be  provided  by  law. 

Sec.  8.  The  legislature  may  by  general  law  confer  upon  the 
boards  of  supervisors  of  the  several  counties  such  powers  of  a local, 
legislative  and  administrative  character,  not  inconsistent  with  the  pro- 
visions of  this  constitution,  as  it  may  deem  proper. 

Sec.  9.  The  boards  of  supervisors  shall  have  exclusive  power  to 
fix  the  salaries  and  compensation  of  all  county  officials  not  otherwise 
provided  for  by  law.  The  boards  of  supervisors,  or  in  counties  having 
county  auditors,  such  auditors,  shall  adjust  all  claims  against  their  re- 
spective counties;  appeals  may  be  taken  from  such  decisions  of  the 
boards  of  supervisors  or  auditors  to  the  circuit  court  in  such  manner 
as  shall  be  prescribed  by  law. 

Sec.  10.  The  board  of  supervisors  of  any  county  may  in  any  one 
year  levy  a tax  of  one-tenth  of  one  mill  on  the  assessed  valuation  of 


1071 


said  county  for  the  construction  or  repair  of  public  buildings  or 
bridges,  or  may  borrow  an  equal  sum  for  such  purposes ; and,  in  any 
county  where  the  assessed  valuation  is  less  than  ten  million  dollars,  the 
board  may  levy  a tax  or  borrow  for  such  purposes  to  the  amount  of 
one  thousand  dollars ; but  no  greater  sum  shall  be  raised  for  such  pur- 
poses in  any  county  in  any  one  year,  unless  submitted  to  the  electors  of 
the  county  and  approved  by  a majority  of  those  voting  thereon. 

Sec.  11.  Any  county  in  this  state,  either  separately  or  in  conjunc- 
tion with  other  counties,  may  appropriate  money  for  the  construction 
and  maintenance  or  assistance  of  public  and  charitable  hospitals,  sana- 
toria or  other  institutions  for  the  treatment  of  persons  suffering  from 
contagious  or  infectious  diseases.  Each  county  may  also  maintain  an 
infirmary  for  the  care  and  support  of  its  indigent  poor  and  unfortu- 
nate, and  all  county  poor  houses  shall  hereafter  be  designated  and 
maintained  as  county  infirmaries. 

Sec.  12.  No  county  shall  incur  any  indebtedness  which  shall  in- 
crease its  total  debt  beyond  3 per  cent  of  its  assessed  valuation,  except 
counties  having  an  assessed  valuation  of  five  million  dollars  or  less, 
which  counties  may  increase  their  total  debt  to  5 per  cent  of  their 
assessed  valuation.  (As  amended  1910). 

Sec.  13.  No  county  seat  once  established  shall  be  removed  until 
the  place  to  which  it  is  proposed  to  be  removed  shall  be  designated  by 
two-thirds  of  the  board  of  supervisors  of  the  county,  and  a majority  of 
the  electors  voting  thereon  shall  have  voted  in  favor  of  the  proposed 
location,  in  such  manner  as  shall  be  prescribed  by  law. 

Sec.  14.  No  navigable  stream  of  this  state  shall  be  either  bridged 
or  dammed  without  permission  granted  by  the  board  of  supervisors  of 
the  county  under  the  provisions  of  law,  which  permission  shall  be  sub- 
ject to  such  reasonable  compensation  and  other  conditions  as  may  seem 
best  suited  to  safeguard  the  rights  and  interest  of  the  county  and  the 
municipalities  therein.  No  such  law  shall  preclude  the  state  from  im- 
proving the  navigation  of  any  such  stream,  nor  prejudice  the  right  of 
individuals  to  the  free  navigation  thereof. 

Sec.  15.  The  board  of  supervisors  of  each  organized  county  may 
organize  and  consolidate  townships  under  such  restrictions  and  limita- 
tions as  shall  be  prescribed  by  law. 

Sec.  15a.  Any  drainage  district,  established  under  provision  of 
law,  may  issue  bonds  for  drainage  purposes  within  such  district. 
(Amendment  of  1917.) 

Sec.  16.  Each  organized  township  shall  be  a body  corporate,  with 
such  powers  and  immunities  as  shall  be  prescribed  by  law.  All  suits 
and  proceedings  by  or  against  a township  shall  be  in  the  name  thereof. 

Sec.  17.  The  legislature  may  by  general  law  confer  upon  or- 
ganized townships  such  powers  of  a local,  legislative  and  administra- 
tive character,  not  inconsistent  with  the  provisions  of  this  constitution, 
as  it  may  deem  proper. 

Sec.  18.  There  shall  be  elected  annually  on  the  first  Monday  of 
April  in  each  organized  township  one  supervisor,  one  township  clerk, 
one  commissioner  of  highways,  one  township  treasurer,  not  to  exceed 


four  constables  and  one  overseer  of  highways  for  each  highways  dis- 
trict, whose  powers  and  duties  shall  be  prescribed  by  law. 

Sec.  19.  No  township  shall  grant  any  public  utility  franchise 
which  is  not  subject  to  revocation  at  the  will  of  the  township,  unless 
such  proposition  shall  have  first  received  the  affirmative  vote,  of  a 
majority  of  the  electors  of  such  township  voting  thereon  at  a regular 
or  special  election. 

Sec.  20.  The  legislature  shall  provide  by  a general  law  for  the 
incorporation  of  cities,  and  by  a general  law  for  the  incorporation,  of 
villages ; such  general  la*vs  shall  limit  their  rate  of  taxation  for  mu- 
nicipal purposes,  and  restrict  their  powers  of  borrowing  money  and 
contracting  debts. 

Sec.  21.  Under  such  general  laws,  the  electors  of  each  city  and 
village  shall  have  power  and  authority  to  frame,  adopt  and  amend  its 
charter,  and  to  amend  an  existing  charter  of  the  city  or  village  here- 
tofore granted  or  passed  by  the  legislature  for  the  government  of  the 
city  or  village  and,  through  its  regularly  constituted  authority,  to  pass 
all  laws  and  ordinances  relating  to  its  municipal  concerns,  subject  to 
the  constitution  and  general  laws  of  this  state.  (As  amended  1912.) 

Sec.  22.  Any  city  or  village  may  acquire,  own,  establish  and 
maintain,  either  within  or  without  its  corporate  limits,  parks,  boule- 
vards, cemeteries,  hospitals,  almshouses  and  all  works  which  involve 
the  public  health  or  safety. 

Sec.  23.  Subject  to  the  provisions  of  this  constitution,  any  city 
or  village  may  acquire,  own  and  operate,  either  within  or  without  its 
corporate  limits,  public  utilities  for  supplying  water,  light,  heat,  power 
and  transportation  to  the  municipality  and  the  inhabitants  thereof ; and 
may  also  sell  and  deliver  water,  heat,  power  and  light  without  its 
corporate  limits  to  an  amount  not  to  exceed  25  per  cent  of  that  fur- 
nished by  it  within  the  corporate  limits;  and  may  operate  transporta- 
tion lines  without  the  municipality  within  such  limits  as  may  be  pre- 
scribed by  law ; Provided,  That  the  right  to  own  or  operate  trans- 
portation facilities  shall  not  extend  to  any  city  or  village  of  less  than 
25,000  inhabitants. 

Sec.  24.  When  a city  or  village  is  authorized  to  acquire  or 
operate  any  public  utility,  it  may  issue  mortgage  bonds  therefor  be- 
yond the  general  limit  of  bonded  indebtedness  prescribed  by  law : Pro- 
vided, That  such  mortgage  bonds  issued  beyond  the  general  limit  of 
bonded  indebtedness  prescribed  by  law  shall  not  impose  any  liability 
upon  such  city  or  village  but  shall  be  secured  only  upon  the  property 
and  revenues  of  such  public  utility,  including  a franchise  stating  the 
terms  upon  which,  in  case  of  foreclosure,  the  purchaser  may  operate 
the  same,  which  franchise  shall  in  no  case  extend  for  a longer  period 
than  twenty  years  from  the  date  of  the  sale  of  such  utility  and  fran- 
chise on  foreclosure. 

Sec.  25.  No  city  or  village  shall  have  power  to  abridge  the  right 
of  elective  franchise,  to  loan  its  credit,  nor  to  assess,  levy  or  collect  any 
tax  or  assessment  for  other  than  a public  purpose.  Nor  shall  any  city 
or  village  acquire  any  public  utility  or  grant  any  public  utility  fran- 
chise which  is  not  subject  to  revocation  at  the  will  of  the  city  or  vil- 


1073 


lage,  unless  such  proposition  shall  have  first  received  the  affirmative 
vote  of  three-fifths  of  the  electors  of  such  city  or  village  voting  thereon 
at  a regular  or  special  municipal  election ; and  upon  such  proposition 
women  taxpayers  having  the  qualifications  of  male  electors  shall  be 
entitled  to  vote. 

Sec.  26.  The  legislature  may  by  general  law  provide  for  the  lay- 
ing out,  construction,  improvement  and  maintenance  of  highways, 
bridges  and  culverts  by  the  state  and  by  the  counties  and  townships 
thereof  and  by  road  districts ; and  may  authorize  counties  or  districts 
to  take  charge  and  control  of  any  highway  within  their  limits  for  such 
purposes.  The  legislature  may  also  by  general  law  prescribe  the 
powers  and  duties  of  boards  of  supervisors  in  relation  to  highways, 
bridges  and  culverts ; may  provide  for  county  and  district  road  com- 
missioners to  be  appointed  or  elected,  with  such  powers  and  duties  as 
may  be  prescribed  by  law ; and  may  change  and  abolish  the  powers  and 
duties  of  township  commissioners  and  overseers  of  highways.  The 
legislature  may  provide  by  law  for  submitting  the  question  of  adopting 
the  county  road  system  to  the  electors  of  the  counties,  and  such  road 
system  shall  not  go  into  operation  in  any  county  until  approved  by  a 
majority  of  the  electors  thereof  voting  thereon.  The  tax  raised  for 
road  purposes  by  counties  shall  not  exceed  in  any  one  year  five  dollars 
upon  each  one  thousand  dollars  of  assessed  valuation  for  the  preceding 
year.  (As  amended  1917.) 

Sec.  27.  The  legislature  shall  not  vacate  nor  alter  any  road  laid 
out  by  commissioners  of  highways,  or  any  street,  alley  or  public 
ground  in  any  city  or  village  or  in  any  recorded  town  plat. 

Sec.  28.  No  person,  partnership,  association  or  corporation 
operating  a public  utility  shall  have  the  right  to  the  use  of  the  high- 
ways, streets,  alleys  or  other  public  places  of  any  city,  village  or  town- 
ship for  wires,  poles,  pipes,  tracks  or  conduits,  without  the  consent  of 
the  duly  constituted  authorities  of  such  city,  village  or  township ; nor 
to  transact  a local  business  therein  without  first  obtaining  a franchise 
therefor  from  such  city,  village  or  township.  The  right  of  all  cities, 
villages  and  townships  to  the  reasonable  control  of  their  streets,  alleys 
and  public  places  is  hereby  reserved  to  such  cities,  villages  and  town- 
ships. 

Sec.  29.  No  franchise  or  license  shall  be  granted  by  any  munic- 
pality  of  this  state  for  a longer  period  than  thirty  years. 


4.  Minnesota  constitution,  Article  XI,  Counties  and  Townships. 

Sec.  1.  The  legislature  may  from  time  to  time  establish  and  or- 
ganize new  counties ; but  no  new  county  shall  contain  less  than  four 
hundred  square  miles ; or  shall  any  county  be  reduced  below  that 
amount;  and  all  laws  changing  county  lines  in  counties  already  or- 
ganized, or  for  removing  county  seats,  shall,  before  taking  effect,  be 
submitted  to  the  electors  of  the  county  or  counties  to  be  affected 
thereby,  at  the  next  general  election  after  the  passage  thereof,  and  be 


1074 


adopted  by  a majority  of  such  electors.  Counties  now  established  may 
be  enlarged,  but  not  reduced  below  four  hundred  (400)  square  miles. 

Sec.  2.  The  legislature  may  organize  any  city  into  a separate 
county,  when  it  has  attained  a population  of  20,000  inhabitants,  with- 
out reference  to  geographical  extent,  when  a majority  of  the  electors 
of  the  county  in  which  such  city  may  be  situated,  voting  thereon,  shall 
be  in  favor  of  a separate  organization. 

Sec.  3.  Laws  may  be  passed  providing  for  the  organization  for 
municipal  and  other  town  purposes,  of  any  congressional  or  fractional 
townships  in  the  several  counties  in  the  State,  provided  that  when  a 
township  is  divided  by  county  lines  or  does  not  contain  one  hundred 
inhabitants,  it  may  be  attached  to  one  or  more  adjoining  townships  or 
parts  of  townships  for  the  purposes  aforesaid. 

Sec.  4.  Provisions  shall  be  made  by  law  for  the  election  of  such 
county  or  township  officers  as  may  be  necessary. 

Sec.  5.  Any  county  and  township  organization  shall  have  such 
powers  of  local  taxation  as  may  be  prescribed  by  law. 

Sec.  6.  No  money  shall  be  drawn  from  any  county  or  township 
treasury  except  by  authority  of  law. 

Sec.  7.  That  the  county  of  Manomin  is  hereby  abolished,  and 
that  the  territory  heretofore  comprising  the  same  shall  constitute  and 
be  a part  of  the  county  of  Anoka. 


5.  Ohio  constitution,  Article  X,  County  and  Township  Organiza- 
tion. 

Sec.  1.  The  General  Assembly  shall  provide,  by  law,  for  the 
election  of  such  county  and  township  officers  as  may  be  necessary. 

Sec.  2.  County  officers  shall  be  elected  on  the  first  Tuesday  after 
the  first  Monday  in  November,  by  the  electors  of  each  county  in  such 
manner,  and  for  such  term,  not  exceeding  three  years,  as  may  be  pro- 
vided by  law.  (As  amended  1885.) 

Sec.  3.  No  person  shall  be  eligible  to  the  office  of  sheriff,  or 
county  treasurer,  for  more  than  four  years,  in  any  period  of  six  years. 

Sec.  4.  Township  officers  shall  be  elected  by  the  electors  of  each 
township,  at  such  time,  in  such  manner,  and  for  such  term,  not  exceed- 
ing three  years,  as  may  be  provided  by  law ; but  shall  hold  their  offices 
until  their  successors  are  elected  and  qualified.  (As  amended  1885.) 

Sec.  5.  No  money  shall  be  drawn  from  any  county  or  township 
treasury,  except  by  authority  of  law. 

Sec.  6.  Justices  of  the  peace,  and  county  and  township  officers, 
may  be  removed,  in  such  manner  and  for  such  cause,  as  shall  be  pre- 
scribed by  law. 

Sec.  7.  The  commissioners  of  counties,  the  trustees  of  townships, 
and  similar  boards,  shall  have  such  power  of  local  taxation,  for  police 
purposes,  as  may  be  prescribed  by  law. 


1075 


6.  Proposed  Ohio  county  home  rule  amendment. 

Art.  19,  Sec.  1.  Any  county  may  frame  and  adopt  or  amend  a 
charter  for  its  government  and  may  exercise  thereunder  all  powers  of 
local  self-government,  and  shall  have  authority  to  adopt  and  enforce 
within  its  limits  such  local  police,  sanitary  and  other  similar  regulations 
as  are  not  in  conflict  with  laws  of  general  application  in  the  State.  The 
General  Assembly  shall  pass  no  general  laws  of  special  application,  and 
no  special  laws  for  specific  counties. 

Sec.  2.  Any  county  with  a population  of  over  200,000  may  pro- 
vide by  charter  for  the  abolition  of  any  or  all  existing  governments 
within  said  county.  It  may  provide  by  charter  in  place  thereof,  a 
unified  government  over  the  entire  county,  which  charter  shall  provide 
for  the  establishment  of  such  local  districts  or  boroughs  for  administra- 
tive and  self-governing  purposes,  or  for  assessment  and  taxation  pur- 
poses or  for  both,  as  it  may  deem  convenient  and  equitable.  Any 
single  government  thus  established  shall  have  the  powers  and  priv- 
ileges granted  to  municipalities  and  counties  under  the  Constitution. 

Sec.  3.  Any  county  framing  its  own  charter  under  the  provisions 
of  this  Article  may  determine  for  itself  what  officers  shall  be  chosen 
by  election  and  for  what  terms  and  under  what  limitations,  and  Article 
10  of  the  Constitution  shall  be  so  construed  in  a charter  county.  Such 
charter  shall  provide  that  the  powers  heretofore  exercised  by  the 
county  officers  for  and  on  behalf  of  the  State  shall  be  exercised  by 
such  officers  as  shall  be  designated  therefor  in  such  charter. 

Sec.  4.  When  a petition  requesting  that  the  question  “Shall  a 
commission  be  chosen  to  frame  a charter,”  or  the  question  “Shall  a 
commission  be  chosen  to  frame  a charter  providing  a single  unified 
government,”  be  submitted  to  the  voters,  signed  by  10  per  cent  of  the 
qualified  electors  of  the  county,  is  filed  with  the  Deputy  State  Super- 
visor of  Elections,  he  shall  order  an  election  upon  the  question  within 
ninety  days.  The  ballots  shall  bear  no  party  designation.  Provision 
shall  be  made  thereon  for  the  election  from  the  county  at  large  of 
15  electors-  who  shall  constitute  a commission  to  frame  a charter. 
Provided,  however,  that  not  more  than  nine  of  the  electors  so  chosen 
shall  be  residents  of  any  one  of  the  cities,  villages  or  townships  within 
the  county  at  the  time  of  such  election.  Names  of  candidates  for  the 
charter  commission  shall  be  placed  upon  the  ballot  by  petitions  filed 
with  the  Deputy  State  Supervisor  of  Elections  not  later  than  twenty 
days  before  the  election  of  such  commissioners.  No  petition  shall  be 
deemed  sufficient  unless  it  bears  the  signatures  of  at  least  1 per  cent 
of  the  qualified  electors  of  the  county.  If  a majority  of  the  electors 
voting  on  the  question  shall  vote  in  the  affirmative  the  Secretary  of 
State  shall  within  ten  days  after  the  receipt  of  the  returns  of  the  elec- 
tion officially  declare  and  make  a matter  of  public  record  that  “County 
has  elected  to  frame  its  own  charter  under  Article  19  of  the  Consti- 
tution and  has  elected  the  following  named  persons  to  frame  a charter 
for  said  county.” 

Upon  this  declaration  by  the  Secretary  of  State  any  charter  com- 
mission chosen  under  the  provisions  of  this  section  shall  immediately 


1076 


be  called  together  by  the  member  whose  name  appears  first  in  alpha- 
betical order.  The  commission  shall  organize  in  such  fashion  as  shall 
seem  wise  and  expedient  and  proceed  to  frame  a budget  to  cover  the 
expenses  which  may  be  contracted  for  secretarial  and  necessary  in- 
cidental purposes.  This  budget  shall  be  presented  to  the  county  com- 
missioners and  they  shall  then  appropriate  out  of  the  general  funds  of 
the  County  an  amount  sufficient  to  meet  the  necessary  expenses  of  the 
Commission.  The  County  Commissioners  shall  also  provide  the  Char- 
ter Commission  with  necessary  quarters  and  general  facilities  for  their 
labors. 

The  charter  as  framed  by  the  Commission  shall  be  submitted  to 
the  voters  of  the  County  at  an  election  to  be  held  at  a time  fixed  by 
the  Charter  Commission  and  within  one  year  from  the  date  of  its  elec- 
tion. Provision  for  said  charter  election  shall  be  made  by  the  Deputy 
State  Supervisor  of  Elections  in  conformity  with  the  laws  governing 
the  holding  of  elections  and  the  Board  of  County  Commissioners  shall 
appropriate  out  of  the  general  funds  of  said  County  a sum  sufficient 
to  pay  the  expenses  of  such  election.  Not  less  than  thirty  days  prior 
to  such  election  the  Deputy  State  Supervisor  of  Elections  shall  mail  a 
copy  of  the  proposed  charter  to  each  elector  whose  name  appears  upon 
the  poll  books  of  the  last  regular  election  held  within  the  County.  If 
such  proposed  charter  is  approved  by  a majority  of  the  electors  voting 
at  the  election  thereon  it  shall  become  the  charter  of  the  county  at  the 
time  fixed  therein. 

Provision  shall  be  made  in  the  schedule  of  any  such  charter  for 
such  lengthening  of  the  terms  of  elected  public  officials  so  that  on  a 
given  date  the  terms  of  all  such  officers  shall  legally  end  and  the 
officials  chosen  under  the  charter  provisions  shall  take  their  place. 


CONSTITUTIONAL  CONVENTION 


BULLETIN  No.  13 

Farm  Tenancy  and 
Rural  Credits 


Compiled  and  Published  by  the 

LEGISLATIVE  REFERENCE  BUREAU 

Springfield,  Illinois 


[Printed  by  authority  of  the  State  of  Illinois.] 


LEGISLATIVE  REFERENCE  BUREAU. 


Governor  Frank  O.  Lowden,  Chairman. 
Senator  Edward  C.  Curtis,  Grant  Park. 
Senator  Richard  J.  Barr,  Joliet. 
Representative  Edward  J.  Smejkal,  Chicago. 
Representative  William  P.  Holaday,  Danville. 


E.  J.  Verlie,  Secretary. 

W.  F.  Dodd,  in  charge  collection  of  data  for 
constitutional  convention. 


TABLE  OF  CONTENTS. 


PAGE. 

I.  Summary  1083 

II.  Farm  tenancy  and  absentee  landlordism.  1085 

Farm  tenures  in  Illinois 1085 

Absentee  landlordism  in  Illinois 1087 

III.  Systems  of  rural  credits:  first  mortgage  systems:  fed- 

eral FARM  LOANS 1089 

National  Farm  Loan  Associations 1090 

Capital  stock  of  national  farm  loan  associations 1092 

Powers  of  national  farm  loan  associations 1092 

Farm  loans  made  through  national  farm  loan  associa- 
tions   1092 

Federal  Land  Banks  1094 

Farm  loans  made  by  the  federal  land  banks 1094 

Terms  and  conditions  of  loans  made  by  federal  land 

banks  1096 

Powers  of  federal  land  banks 1098 

Restrictions  on  federal  land  banks 1099 

Agents  of  federal  land  banks 1099 

Bonds  of  federal  land  banks 1100 

Joint  Stock  Land  Banks 1100 

Differentiated  from  federal  land  banks... 1100 

Farm  loans  made  by  the  joint  stock  land  banks 1101 

Amortization  Plan  of  the  Federal  System...-. 1103 

Amortization  methods  of  the  federal  land  banks  and 

the  joint  stock  land  banks 1104 

Application  of  amortization  and  interest  payments.  . . .1105 

Investments  in  Farm  Loan  Bonds 1106 

Provisions  safeguarding  investments 1106 

IV.  Other  first  mortgage  systems 1110 

State  systems 1110 

Foreign  systems 1116 

V.  Systems  based  on  second  mortgages 1118 


CONTENTS— Concluded. 


VI.  Systems  for  short-time  credits 1119 

VII.  Conclusions  1120 

Appendix — references  1121 


I.  SUMMARY. 


The  provisions  of  the  present  state  constitution  directly  invol- 
ved in  the  problems  of  farm  tenancy  and  rural  credits  include: 

Art.  4,  Sec.  20.  Prohibiting  the  state  from  loaning  its  credit. 

Art.  11,  Sec.  5.  Forbidding  the  state  to  engage  in  banking. 

Art.  9,  Sec.  1.  Requiring  taxation  to  be  uniform. 

The  restrictions  as  to  banking  activities  of  the  state  and  the  loan- 
ing of  the  state’s  credit  read  as  follows : 

Art.  IV,  Sec.  20.  “The  state  shall  never  pay,  assume  or  become 
responsible  for  the  debts  or  liabilities  of,  or  in  any  manner  give,  loan 
or  extend  its  credit  to,  or  in  aid  of,  any  public  or  other  corpora- 
tion, association,  or  individual”  ; and : 

Art.  XI,  Sec.  5.  “nor  shall  the  state  own  or  be  lia- 

ble for  any  stock  in  any  corporation  or  joint  stock  company  or  associa- 
tion for  banking  purposes  now  created,  or  to  be  hereafter  created.” 

These  limitations  have  prevented  the  organization  of  coopera- 
tive credit  associations  backed  by  the  credit  of  the  state.  Whatever 
organizations  have  been  created  under  the  authority  of  the  state  to 
meet  farm  loan  needs  in  Illinois  have  been  fostered  by  private  cap- 
ital. 

The  section  requiring  taxation  to  be  uniform  reads : 

Art.  IX,  Sec.  1.  “The  General  Assembly  shall  provide  such 
revenue  as  may  be  needed  by  levying  a tax,  by  valuation,  so  that  every 
person  and  corporation  shall  pay  a tax  in  proportion  to  the  value  of 
his,  her  or  its  property  ...  in  such  manner  as  it  shall  from 
time  to  time  direct  by  general  law,  uniform  as  to  the  class  upon  which 
it  operates.” 

This  limitation  stands  in  the  way  of  a graduated  land  tax  on 
large  holdings,  a system  of  taxation  that  has  been  advocated  as  a 
means  of  breaking  up  large  estates.  Those  who  favor  this 
method  of  taxation  urge  that  it  would  have  a tendency  to  discourage 
the  holding  of  land  for  speculative  or  tenancy  purposes,  and  so  bring 
about  the  condition  they  desire — the  farming  land  of  the  state  owned 
by  those  who  cultivate  it. 

While  the  aim  of  a graduated  tax  is  to  limit  the  amount  of  land 
that  can  be  held  by  a non-operating  owner,  the  purpose  of  farm  loan 
systems  is  to  furnish  positive  help  to  actual  farmers  in  securing  small 
farms. 

The  problem  in  rural  credits  is  how  to  develop  measures  that  will 
bring  together  the  person  who  has  money  to  lend  and  the  young  farmer 
who  wishes  to  establish  a home.  The  credit  systems  so  far  developed 


1084 


have  generally  made  provision  for  cooperative  farm  loan  associations 
and  land  banks,  supplementing  each  other  in  such  a way  that  the  land 
banks  may  make  the  loans  to  the  borrowers  and  issue  their  bonds 
or  debentures  to  the  investors.  In  this  way  the  land  bank  serves  as 
an  intermediary  between  those  who  desire  to  borrow  and  those  who 
desire  to  lend  on  security  based  on  agricultural  land. 

The  various  systems  of  rural  credits  may  be  grouped  under  first 
mortgage  systems,  second  mortgage  systems  and  systems  for  short 
time  credits. 

The  federal  rural  credit  system  is  a first  mortgage  system  ex- 
clusively ; it  functions  through  the  instrumentality  of  the  national 
farm  loan  associations,  (or  in  their  absence  through  duly  authorized 
agents)  the  federal  land  banks  and  joint  stock  land  banks.  These 
various  agencies  are  organized  in  such  a way  that  each  farmer  who 
becomes  a member  of  a farm  loan  association  may  receive  the  benefit 
of  the  combined  credit  of  all  its  members  to  the  extent  of  the  capital 
contributed  and  the  limited  liability  they  each  incur.  The  federal 
system  operates  exclusively  on  the  amortization  plan. 

The  federal  farm  loan  system  was  enacted  after  a thorough  con- 
sideration of  the  various  foreign  systems  of  rural  credits,  and  the 
first  mortgage  plan  was  adopted  on  the  theory  that  the  land  mortgage 
bonds  must  be  carefully  secured  so  that  they  might  have  a ready  sale 
throughout  the  country. 

It  has  been  urged  that  a system  based  on  second  mortgages  could 
be  advantageously  developed  within  the  limits  of  a single  state  where 
land  values  aJre  high  and  conditions  are  stable,  but  most  of  the  states 
so  far  have  duplicated  the  federal  plan,  although  it  is  urged  that  a 
large  field  for  second  mortgages  remains  unoccupied. 

A system  of  short  time  credits  in  the  form  of  personal  credit 
cooperative  unions  has  been  proposed  in  order  to  supply  credit  for 
cooperative  marketing  organizations.  Cooperative  selling  systems  as 
well  as  plans  for  cooperative  buying  on  the  part  of  the  farmer  might 
be  developed  under  a well  devised  system  of  personal  credit  unions 
under  the  supervision  of  the  state. 

Those  who  advocate  the  establishment  of  a state  rural  credit  sys- 
tem claim  that  neither  the  federal  system  of  rural  credits  nor  the  private 
agencies  within  the  state  are  adequate  to  meet  the  situation  in  Illinois. 

On  the  one  hand  it  is  urged  that  the  state  system  could  be  operated 
to  advantage  in  competition  with  the  federal  system : on  the  other  hand 
it  has  been  suggested  that  a system  based  on  second  mortgages  would 
be  more  advantageous,  as  such  a system  could  supplement  the  federal 
first  mortgage  system. 

How  may  the  farm  loan  needs  of  the  state  of  Illinois  be  most  ad- 
vantageously met?  What  are  the  relative  merits  of  the  several  rural 
credit -systems  so  far  developed,  and  does  the  experience  of  other  states 
and  other  countries  offer  any  suggestions  for  the  farm  loan  situation 
in  this  state? 

The  constitutional  provisions  and  legislative  measures  presented  in 
the  following  pages  may  furnish  some  data  toward  a solution  of  the 
problems  under  consideration. 


1 085 


II.  FARM  TENANCY  AND  ABSENTEE  LANDLORDISM. 


Farm  tenures  in  Illinois.  The  proportion  of  farm  tenants  to 
farm  owners  has  shown  a steady  increase  in  Illinois  for  some  forty 
years. 

The  United  States  census  for  1880  gave  some  attention  to  ques- 
tions of  land  ownership  and  farm  tenancy  in  the  different  states  and 
the  data  collected  at  that  time  gave  a higher  percentage  of  tenants  in 
Illinois  than  in  any  other  northern  state.  Succeeding  census  reports 
left  Illinois  in  the  same  relative  position,  showing  a higher  percentage 
of  tenant  farmers  than  any  other  state  in  this  section  of  the  United 
States. 

In  1880  there  were  23  tenants  for  every  100  farmers  in  the  United 
States.  In  1910  this  percentage  had  increased  to  37.1  per  cent  for  the 
entire  country. 

In  Illinois  the  proportion  of  tenants  reached  31.4  per  cent  in  1880, 
and  41.4  per  cent  in  1910.  At  the  present  time  conservative  estimates 
place  the  number  of  tenants  above  60  per  cent  for  the  entire  state; 
and  from  60  to  80  per  cent  for  the  rich  lands  in  the  corn  belt.  The  most 
conservative  estimates  indicate  that  more  than  half  the  farmers  of  Illi- 
nois do  not  own  the  farms  they  cultivate. 

When  the  proportion  of  tenant  farmers  exceeds  25  or  30  per  cent 
under  agricultural  conditions  in  the  northern  states,  there  is  occasion 
for  inquiry.  Where  not  more  than  one-fourth  of  the  farmers  are  ten- 
ants, tenancy  may  merely  represent  the  stage  between  agricultural  labor 
and  farm  ownership.  In  many  cases  tenants  are  relatives  of  the  owner, 
or  the  owner  is  a retired  farmer  who  rents  to  some  young  farmer  who 
is  accumulating  capital  in  order  to  purchase  the  farm  later  on.  Under 
these  conditions  the  average  time  spent  as  a tenant  is  about  ten  years 
and  the  average  owner  becomes  an  owner  at  about  35  years.1 

Where  tenancy  represents  merely  a brief  transition  stage,  from 
which  the  agricultural  laborer  or  young  farmer  becomes  the  owner  of 
the  land  he  cultivates  whenever  he  shows  normal  thrift  and  industry, 
there  seems  to  be  little  cause  for  apprehension ; but  where  tenancy  be- 
comes the  average  condition  of  farm  life,  the  interests  of  the  common- 
wealth are  involved.  Scientific  investigation  and  common  observation 
seem  to  unite  in  the  charge  that  tenant  farming  results  in  smaller  crops, 
in  declining  fertility  of  the  soil,  and  in  a lower  standard  of  social  wel- 
fare, wherever  it  becomes  the  dominant  method  of  agriculture. 

Various  measures  have  been  proposed  to  meet  the  growing  prob- 
lem of  farm  tenancy.  Those  most  commonly  urged  include : 1.  A 

state  land  settlement  commission;  2.  A graduated  land  tax  with  pro- 


1 See  reference  list  for  investigations  made  by  Dr.  B.  F.  Hibbard  of  the 
University  of  Wisconsin,  and  by  Professor  G.  F.  Warren  of  Cornell  University. 


1086 


gressive  rates:  (a)  varying  according  to  size  of  holding,  and  (b)  with 

increased  rates  for  owners  who  do  not  operate  the  land ; 3.  Inheritance 
tax  with  progressive  rate  for  large  holdings ; 4.  Equalization  of  taxes 
as  between  used  and  unused  land ; 5.  Definite  limit  on  amount  any  per- 
son may  own;  6.  Direct  purchase  and  sale  of  land  by  government;  7. 
Provision  for  alternative  investments. 

State  land  settlement  commissions  are  helping  solve  the  tenancy 
problem  in  a number  of  states.  Measures  enacted  in  Maine,  Oregon, 
and  Arizona  are  typical  of  similar  measures  in  force  in  different  sec- 
tions of  the  country. 

The  constitutional  provision  that  taxation  shall  be  uniform  (Art. 
9,  Sec.  1)  at  the  present  time  stands  in  the  way  of  most  of  the  measures 
urged  for  graduated  taxes  on  large  land  holdings. 

Section  1 provides  that,  “The  General  Assembly  shall  provide  such 
revenue  as  may  be  needful  by  levying  a tax  by  valuation,  so  that  every 
person  and  corporation  shall  pay  a tax  in  proportion  to  the  value  of 
his,  her  or  its  property  ...  in  such  manner  as  it  shall  from  time 
to  time  direct  by  general  law,  uniform  as  to  the  class  upon  which  it 
operates.” 

The  principle  of  progressive  taxation  is  well  established  in  this 
country  in  the  income  tax  and  the  inheritance  tax  laws.  It  has  been 
proposed  that  this  principle  be  applied  in  taxing  large  land  holdings. 

Advocates  of  this  plan  propose  that  the  smaller  farms  be  entirely 
exempt  from  any  graduated  tax  and  that  the  sur  tax  should  not  begin  to 
operate  on  any  holdings  not  in  excess  of  640  acres.  Others  have  sug- 
gested that  the  size  of  the  holdings  exempted  should  be  placed  as  low  as 
480  or  even  320  acres.  On  the  other  hand  it  has  been  urged  that  so 
small  a holding  should  not  be  subject  to  the  tax,  as  the  general  nature 
of  agriculture  in  Illinois  requires  a farm  varying  from  80  to  320  acres 
to  support  a single  family. 

Others  have  proposed  that  a sur  tax  of  20  per  cent  be  placed 
on  all  holdings  over  640  acres,  and  that  the  rate  of  progression  for 
farms  over  twice  that  amount  should  increase  rapidly  until  the  rate 
for  large  estates,  such  as  the  Scully  estate,  would  become  practically 
prohibitive.  Such  a provision  would  undoubtedly  result  in  the  re- 
duction of  many  large  estates  into  small  sized  farms. 

A further  proposition  has  been  made  to  increase  the  rates  for 
owners  of  large  holdings  who  do  not  operate  the  land.  It  is  urged 
that  such  a classification,  based  on  the  nature  and  use  of  the  property, 
would  not  meet  the  constitutional  objections  urged  against  most  of  the 
proposals  for  breaking  up  large  holdings. 

It  has  also  been  urged  that  the  principle  of  the  graduated  land  tax 
be  extended  so  as  to  be  used  in  connection  with  the  inheritance  tax 
law.  Undoubtedly  many  owners  of  large  estates  would  elect  to  escape 
such  a tax  by  disposing  of  part  of  their  land  in  advance.  If  the  rate 
of  progression  for  the  inheritance  tax  on  large  holdings  were  made 
higher  than  the  rate  for  the  graduated  tax  on  land  holdings  it  would 
result  in  giving  a flexible  margin  to  holdings.  Under  this  proposal 
a large  family,  cultivating  extensive  lands,  as  a unit,  would  not  feel 


1087 


the  weight  of  the  graduated  tax  to  such  a great  extent  until  the  trans- 
fer of  the  holdings  through  inheritance. 

The  equalization  of  taxes  as  between  used  and  unused  land  has 
further  been  proposed.  This  method  of  taxation  is  also  prohibited 
at  the  present  time  by  the  Constitutional  restriction  as  to  uniformity. 

Placing  a definite  limit  on  the  amount  which  any  person  may  own 
is  another  proposal  sometimes  urged.  This  method  has  been  tried 
with  some  success  in  New  Zealand.  In  general,  the  plan  aims  at  the 
same  result  which  would  be  secured  under  a graduated  tax  on  large 
holdings,  and  it  has  been  urged  that  a graduated  tax  would  be  more 
in  keeping  with  the  spirit  of  our  laws  and  institutions. 

A system  which  substitutes  direct  action  on  the  part  of  the  govern- 
ment in  the  purchase  and  sale  of  land  to  settlers  has  been  effectively 
tried  in  a number  of  countries.  In  New  Zealand  this  system  has  been 
advantageously  operated  in  securing  the  settlement  of  the  land  by  small 
holders.  The  government  in  New  Zealand  buys  the  land  outright  and 
sells  it  to  small  holders  at  the  price  paid.  Provision  is  made  for  a low 
rate  of  interest  and  easy  terms  of  payment.  This  system  has  been  par- 
ticularly useful  in  cases  where  the  state  desires  to  break  up  large 
holdings  and  estates  into  small  farms  owned  and  operated  by  farmers 
living  on  the  land. 

California  has  provided  a land  fund  through  which  the  state 
buys  land  in  large  holdings  and  resells  it  to  small  farmers  on  easy 
payments.  This  particular  state  found  this  method  advantageous  in 
the  development  of  its  small  fruit  farms. 

It  has  further  been  urged  that  provision  be  made  for  alternative 
investments,  so  that  funds  now  going  into  land  investments  might  be 
turned  into  other  channels. 

This  demand  has  been  partially  met  by  federal  and  state  farm 
loan  bonds.  The  first  mortgage  land  bonds  issued  under  the  authority 
of  the  Federal  Farm  Loan  Board,  have  opened  a wide  field  to  investors 
who  have  heretofore  bought  land  as  the  only  safe  investment  with 
which  they  were  familiar.  Since  these  bonds  offer  perfect  security  and 
a fair  rate  of  interest,  together  with  opportunity  for  long  time  in- 
vestments, they  will  have  a tendency  to  influence  many  investors 
against  the  accumulation  of  land.  On  the  one  hand  this  will  result  in 
land  being  offered  for  sale,  and  on  the  other  hand  it  will  withdraw  a 
large  group  of  land  buvers.  Giving  small  investors  such  alternative 
opportunities  to  invest  their  savings,  would  accordingly  open  a large 
amount  of  land  to  actual  farmers. 

Unless  some  positive  action  of  this  sort  is  brought  to  bear  upon 
non-operating  holders  of  land,  the  price  of  land  in  Illinois  is  likely 
to  advance  far  beyond  the  value  of  its  producing  power.  Even  at  the 
present  time  the  effectiveness  of  a farm  loan  system  in  meeting  the 
tenancy  problem  is  largely  discounted  by  the  high  cost  of  land. 


Absentee  landlordism  in  Illinois.  The  problem  of  absentee 
landlordism  has  been  aggravated  in  the  state  of  Illinois  by  a number 
of  great  non-resident  holdings  like  the  Scully  estate. 


1088 


Measures  most  frequently  urged  to  meet  the  problems  of  absentee 
landlordism  include:  1.  Laws  prohibiting  the  ownership  of  land  by 

aliens;  2.  A higher  tax  rate  for  non-residents. 

Laws  making  it  illegal  for  an  alien  to  own  land  within  a state 
have  been  enacted  in  a number  of  states.  However,  such  laws  have 
usually  been  circumvented  by  the  acquisition  of  citizenship  papers  and 
fictitious  residence  in  this  country;  such  aliens  becoming  naturalized 
simply  on  account  of  the  prohibition  against  alien  ownership  of  farm 
land.  There  is  the  further  difficulty  that  such  a provision  might  be 
held  objectionable  under  the  federal  constitution. 

The  proposal  to  tax  citizens  at  different  rates  according  as  they 
are  resident  or  non-residents  within  the  state  might  also  be  objection- 
able under  the  federal  constitution  as  being  contrary  to  inter-state 
comity. 

The  purpose  of  both  of  these  proposals  is,  of  course,  to  break 
up  large  holdings  for  the  use  of  actual  farmers,  who  will  own  and 
operate  the  land  upon  which  they  live.  It  has  been  pointed  out  that 
this  purpose  could  be  just  as  readily  secured  under  a graduated  land 
tax;  and  that  a classification  as  between  operators  and  non-operators 
of  agricultural  lands  could  be  made  by  any  state  without  being  ob- 
jectionable under  the  federal  constitution. 

Under  such  a classification,  land  held  for  speculative  purposes 
or  large  holdings  held  for  occupation  by  tenants,  could  be  taxed  at  a 
higher  rate  than  land  which  is  operated  and  improved  by  the  owner. 


1089 


III.  SYSTEMS  OF  RURAL  CREDITS:  FIRST  MORTGAGE 

SYSTEMS:  FEDERAL  FARM  LOANS. 


Since  the  enactment  of  the  Federal  Farm  Loan  Act  July  17,  1916, 
a considerable  number  of  National  Farm  Loan  Associations  have  been 
organized  within  this  State.  By  October  31,  1919,  a total  of  1,768 
loans,  aggregating  $6,841,475.00  had  been  placed  on  Illinois  farm  lands 
through  these  Federal  cooperative  associations.  The  total  for  the 
entire  United  States,  on  the  same  date  showed  103,672  separate  loans 
aggregating  $271,317,816.00.  The  total  number  of  loans  and  aggre- 
gate amounts  for  states  contiguous  to  Illinois  for  the  same  period  were 
as  follows:  Indiana  2,440  loans  and  $8,234,700.00;  Michigan  2,802 

loans  and  $5,093,200.00 ; Wisconsin  1,884  loans  and  $4,455,800.00 ; 
Minnesota  3,256  loans  and  $9,921,100.00 ; Iowa  2,522  loans  and  $17,-* 
766,350.00 ; Missouri  2,682  loans  and  $7,223,050.00 ; and  Kentucky 
1,442  loans  and  $3,691,200.00.  Contrasted  with  these  Delaware  had 
only  12  loans  in  all  aggregating  $24,500.00,  the  smallest  number  as 
well  as  the  smallest  aggregate  for  any  State,  while  Texas  had  the 
largest  number  of  loans  as  well  as  the  largest  aggregate  for  the  same 
period  amounting  to  10,643  loans  with  an  aggregate  of  $29,999,156.00. 

The  Joint  Stock  Land  Banks,  also  provided  for  in  the  Federal 
act  made  additional  farm  loans  amounting  to  $47,633,775.83  for  the 
entire  United  States.  Adding  this  amount  to  the  total  loans  made 
through  the  Farm  Loan  Associations  for  the  entire  country,  gives 
a sum  total  of  $318,951,591.83  placed  on  farm  loans  under  the  Federal 
Farm  Loan  Board  in  a period  slightly  more  than  three  years  since 
it  was  established. 

The  present  federal  farm  loan  act  is  distinctly  limited  to  first  mort- 
gage loans.  Such  loans  involve  little  risk  and  therefore  permit  a low 
rate  of  interest  and  provide  a safe  basis  for  the  issue  of  the  farm  loan 
bonds.  The  amortization  plan  of  the  federal  law  further  tends  to  lower 
the  amount  of  interest  actually  paid,  and  this  process  of  paying  off  the 
indebtedness  by  installment  payments  of  a fixed  amount,  which  in- 
cludes interest  and  a part  of  the  principal,  throughout  a period  of  years, 
thus  provides  a regular  source  of  capital  for  the  payment  of  the  farm 
loan  bonds. 

Briefly  summarized,  the  purpose  of  the  federal  farm  loan  act  is  to 
provide  capital  for  agricultural  development  and  to  create  standard 
forms  of  investment  based  upon  farm  mortgages ; or  more  specifically, 
as  summarized  by  the  Federal  Farm  Loan  Board,  “To  lower  and  equal- 
ize interest  rates  on  first  mortgage  farm  loans ; to  provide  long  term 
loans  with  the  privilege  of  repayment  in  installments  through  a long 
or  short  period  of  years,  at  the  borrower’s  option ; to  assemble  the  farm 


1090 


credits  of  the  nation,  to  be  used  as  security  for  money  to  be  employed 
in  farm  development ; to  stimulate  cooperative  action  among  farmers ; 
to  make  it  easier  for  the  landless  to  get  land ; and  to  provide  safe  and 
sound  long-term  investments  for  the  thrifty.” 

The  entire  system  of  farm  loans  under  the  Federal  Farm  Loan 
Board  involves  two  methods  of  cooperative  action : first,  cooperative  as- 
sociations of  borrowers,  operating  by  means  of  the  farm  loan  associa- 
tions and  the  12  federal  land  banks ; second,  cooperative  associations  of 
lenders,  operating  through  the  joint  stock  land  banks. 


National  Farm  Loan  Associations. 

The  national  farm  loan  associations  are  organized  and  controlled 
by  the  borrowers : each  is  made  up  of  10  or  more  farmers  and  it  is 
through  these  local  units  that  the  borrower  enters  into  the  benefits  of 
the  system.  These  cooperative  units  furnish  the  machinery  for  bor- 
rowing and  investing,  for  voting,  and  for  protection  against  loss. 

A national  farm  loan  association  may  be  formed  by  persons  desir- 
ing to  borrow  money  on  farm  mortgage  security  by  entering  into  arti- 
cles of  association  under  the  farm  loan  act.  Membership  in  an  associ- 
ation is  limited  to  natural  persons  who  are  actual  farmers  and  who  are 
the  owners,  or  about  to  become  owners  of  farm  land.  This  includes 
prospective  farmers,  tenants,  or  farm  laborers  who  are  about  to  pur- 
chase land.  The  prospective  borrowers  hold  an  organization  meeting 
and  elect  from  their  members  a board  of  five  or  more  directors,  and 
this  board  elects  a loan  committee  of  three,  a president,  vice  president, 
and  a secretary-treasurer,  who  is  a bonded  officer.  The  secretary-treas- 
urer may  or  may  not  be  a member  of  the  association.  These  prospective 
borrowers,  10  or  more  in  number,  then  make  application  in  writing  to 
the  federal  land  bank  of  the  district  for  loans  to  the  aggregate  amount 
of  $20,000  and  for  a charter  to  do  business.  They  must  sign  and  ac- 
knowledge articles  of  association  and  forward  them  to  the  federal  land 
bank.  The  federal  land  bank  then  sends  its  appraiser  to  inspect  the 
land  offered  as  security  for  the  loans  applied  for,  and,  if  satisfactory, 
the  loans  are  authorized  when  the  charter  is  granted  to  the  association. 
The  bank  then  advances  the  money  through  the  secretary-treasurer  of 
the  local  association.  In  the  application  signed  by  borrowers  each  must 
indicate  how  much  money  he  desires  and  must  list  the  value  of  the  land 
to  be  mortgaged  as  security ; but  no  person  may  borrow  more  than 
$10,000  nor  less  than  $100,  and  in  no  case  may  the  loan  exceed  50  per 
cent  of  the  value  of  the  land  mortgaged,  and  20  per  cent  of  the  value  of 
the  permanent  insured  improvements. 

Upon  the  granting  of  the  charter  the  individuals  signing  the  appli- 
cation become  a body  corporate,  and  the  farm  loan  association  thus  or- 
ganized has  the  right  to  do  the  business  authorized  by  the  farm  loan 
act  and  to  have  succession  indefinitely.  When  once  organized  it  may 
take  in  new  members  from  time  to  time  and  thus  serve  an  entire  com- 
munity continuously. 


1091 


Whenever  any  national  farm  loan  association  desires  to  secure  a 
loan  on  first  mortgage  for  any  of  its  members  from  the  federal  land 
bank  of  its  district,  it  is  required  to  subscribe  for  capital  stock  of  the 
land  bank  to  the  amount  of  5 per  cent  of  such  loan ; this  subscription 
is  to  be  paid  in  cash  upon  the  granting  of  the  loan  by  the  land  bank. 
Such  capital  stock  is  to  be  held  by  the  land  bank  as  collateral  security 
for  the  payment  of  the  loan,  but  any  dividends  accruing  and  payable 
on  such  capital  stock  while  it  is  outstanding  are  to  be  paid  to  the  farm 
loan  association.  Such  stock  may  be  paid  off  at  par  and  retired  in  the 
discretion  of  the  directors  of  the  association  and  with  the  approval 
of  the  Federal  Farm  Loan  Board,  and  the  stock  must  be  paid  off 
and  retired  upon  full  payment  of  the  mortgage  loan.  In  such  case 
the  national  farm  loan  association  is  required  to  pay  off  at  par  and 
to  retire  the  corresponding  shares  of  its  stock  which  were  issued  when 
the  land  bank  stock  was  issued.  The  capital  stock  of  the  federal  land 
bank  may  not  be  reduced  to  less  than  5 per  cent  of  outstanding  farm 
loan  bonds  issued  by  it. 

Any  person  whose  application  for  membership  is  accepted  by  a 
loan  association  is  entitled  to  borrow  when  funds  are  available  unless 
the  federal  land  bank  of  the  district  or  the  farm  loan  board  determine 
otherwise.  Any  borrower  may,  at  his  option,  pay  for  his  stock  from 
the  proceeds  of  the  loan,  provided  the  total  amount  of  the  loan  does  not 
exceed  the  maximum  limit  of  $10,000.  Any  sum  thus  borrowed  from 
the  federal  land  bank  through  the  association  is  to  be  made  a part  of  the 
face  of  the  loan  and  paid  off  in  amortization  payments. 

Subject  to  rules  and  regulations  prescribed  by  the  Federal  Farm 
Loan  Board,  any  loan  association  is  entitled  to  retain  a commission  not 
exceeding  one-eighth  of  one  per  cent  semi-annually  from  each  interest 
payment  upon  the  unpaid  principal  of  any  loan  indorsed  by  it.  Any 
amounts  so  retained  as  commissions  are  to  be  deducted  from  dividends 
payable  to  the  federal  farm  loan  association  by  the  federal  land  bank. 
Any  loan  association  may  make  application  to  the  federal  land  bank  of 
the  district  for  loans  not  exceeding  in  the  aggregate  one- fourth  of  its 
total  stock  holdings  in  the  bank.  The  land  banks  have  the  power  to 
make  such  loans  and  to  charge  interest  not  exceeding  6 per  cent  per 
annum. 

. Shareholders  of  every  loan  association  are  held  individually  liable, 
equally  and  ratably,  and  not  one  for  another,  to  the  extent  of  the  par 
value  of  the  stock  owned  by  them,  in  addition  to  the  amount  paid  in  and 
represented  by  their  shares. 

After  a charter  has  been  granted,  any  natural  person  owning,  or 
about  to  own  qualified  land,  may  become  a member  of  an  association 
upon  approval  of  the  directors  and  upon  subscribing  to  stock  to  the  ex- 
tent of  five  per  cent  of  his  proposed  loan. 

Whenever  an  application  for  a mortgage  loan  is  made  to  a loan 
association  it  must  be  referred  to  its  loan  committee.  This  committee 
examines  the  land,  makes  an  appraisal  and  a detailed  written  report,  and 
no  loan  may  be  approved  by  the  directors  of  the  loan  association  unless 
the  committee’s  report  is  favorable.  The  written  report  and  approval 
of  the  loan  committee  are  then  submitted  to  the  directors  of  the  land 


1092 


bank,  together  with  the  application  for  the  loan.  The  land  bank  is  re- 
quired to  refer  the  application  and  the  report  to  the  land  bank  appraiser 
for  investigation,  and  no  loan  may  be  made  by  the  bank  unless  the  writ- 
ten report  of  the  appraiser  is  favorable.  Land  bank  appraisers  are  re- 
quired to  make  such  examinations  and  appraisals  and  conduct  such  in- 
vestigations concerning  farm  loan  bonds,  and  first  mortgages  as  the 
Federal  Farm  Loan  Board  may  direct. 

Capital  stock  of  national  farm  loan  associations.  The  shares  in  na- 
tional farm  loan  associations  have  a par  value  of  $5.00  each.  Each 
shareholder  is  entitled  to  one  vote  on  each  share  of  stock  held  by  him 
at  all  elections  of  directors  and  in  deciding  all  questions  at  meetings 
of  shareholders,  but  the  maximum  number  of  votes  which  may  be  cast 
by  any  one  shareholder  is  limited  to  20.  It  is  evident  that  this  limita- 
tion on  voting  power  places  all  members  who  borrow  more  than  $2,000 
on  an  equality  of  voting  strength,  regardless  of  any  larger  loans  which 
they  may  carry. 

Only  borrowers  on  farm  land  mortgages  are  permitted  to  be  mem- 
bers or  shareholders  in  the  loan  associations.  Every  applicant  for  a 
loan  must  apply  for  membership  and  subscribe  to  stock  in  the  associa- 
tion to  the  extent  of  5 per  cent  of  the  desired  loan,  and  this  subscrip- 
tion must  be  paid  in  cash  upon  the  granting  of  the  loan.  If  the  appli- 
cation for  membership  is  accepted,  the  loan  granted,  and  the  stock  paid 
for,  the  applicant  becomes  the  owner  of  one  $5  share  of  capital  stock 
in  the  loan  association  for  each  $100  of  the  face  of  his  loan  or  any 
major  fraction  thereof.  Upon  full  payment  of  the  loan  such  capital 
stock  is  retired ; meanwhile  it  is  held  as  collateral  security  by  the  asso- 
ciation, but  the  borrower  receives  any  dividends  accruing  and  payable 
while  it  is  outstanding.  The  amount  of  capital  stock  is  to  be  increased 
by  the  association  from  time  to  time  for  the  purpose  of  securing  addi- 
tional loans  for  its  members  and  providing  for  the  issue  of  shares  to 
borrowers  in  accordance  with  the  provisions  of  the  act,  but  any  such  in- 
creases must  be  stated  in  the  quarterly  reports  to  the  Farm  Loan  Board. 

Powers  of  national  farm  loan  associations.  Every  national  farm 
loan  association  has  the  power  to  indorse  and  thereby  become  liable  for 
the  payment  of  mortgages  taken  from  its  shareholders  by  the  federal 
land  bank  of  its  district;  to  receive  funds  advanced  by  the  land  bank 
and  to  pay  over  such  funds  to  the  borrowers.  It  may  further  issue  cer- 
tificates against  deposits  of  current  funds  and  convertible  into  farm 
loan  bonds  when  presented  at  the  federal  land  bank  of  the  district  in  the 
amount  of  $25  or  any  multiple  thereof ; such  deposits  when  received, 
are  forthwith  to  be  transmitted  to  the  land  bank  and  be  invested  by  it 
in  the  purchase  of  farm  loan  bonds  issued  by  a federal  land  bank  or 
in  first  mortgages  under  the  act.  The  association  is  further  empower- 
ed to  own  such  property  as  may  be  required  for  the  transaction  of  its 
business. 

Farm  loans  made  through  national  farm  loan  associations.  The 
following  statement  compiled  from  data  supplied  by  the  Federal  Farm 
Loan  Bureau  shows  the  number  of  loans  made  by  the  Federal  land 
banks  through  the  national  farm  loan  associations  since  the  enact- 
ment of  the  federal  law,  and  up  to  October  31,  1919,  inclusive.  Totals 


1093 


are  shown  for  each  separate  state,  for  each  of  the  twelve  federal  land 
bank  districts,  and  for  the  entire  United  States. 


) 


Statement  showing  loans  in  the  twelve  federal  land  hank  districts  from 
organization  to  October  31,  1919. 


Total  loans. 


Springfield 

Maine  

New  Hampshire 

Vermont  

Massachusetts 
Rhode  Island  . 
Connecticut  . . . 
New  York  .... 
New  Jersey 

Total  

Baltimore 

Pennsylvania  . , 

Virginia  

West  Virginia.  , 

Maryland  

Delaware  

Total  

Columbia 

North  Carolina 
South  Carolina 

Georgia  

Florida  

Total  

Louisville 

Tennessee  

Kentucky  

Indiana  

Ohio  

Total  

New  Orleans 

Alabama  

Louisiana  

Mississippi 

Total  

St.  Louis 

Illinois  

Missouri  

Arkansas  

Total  

St.  Paul 

N.  Dakota  

Minnesota  

Wisconsin  

Michigan  


No. 

Amount. 

550 

$1,187,300 

159 

333,000 

324 

827,450 

622 

1,566,155 

53 

125,650 

410 

1,255,350 

1,409 

4,327,990 

244 

810,550 

3,771 

$10,433,445 

934 

$2,441,200 

2,484 

6,608,250 

642 

1,172,150 

216 

682,200 

12 

24,500 

4,288 

$10,928,300 

2,676 

$4,737,800 

1,683 

4,542,040 

1,008 

2,625,885 

1,437 

2,536,770 

6,804 

$14,442,495 

2,058 

$5,163,700 

1,442 

3,691,200 

2,440 

8,234,700 

565 

1,810,500 

6,505 

$18,900,100 

3,493 

$5,892,070 

2,681 

4,310,190 

6,595 

8,465,670 

12,769 

$18,667,930 

1,768 

6,841,475 

2,682 

7,223,050 

4,924 

7,531,755 

9,374 

$21,596,280 

5,264 

$15,912,900 

3,256 

9,921,100 

1,884 

4,455,800 

2,802 

5,093,200 

Total 


13,206  $35,383,000 


Loans  in  the  twelve  federal  land  bank  districts — Concluded. 


Omaha 

Iowa  

Nebraska  

S.  Dakota 

Wyoming  

Total  

Wichita 

Kansas  

Oklahoma  

Colorado  

New  Mexico 

Total  

Houston 

Texas  

Total  

Berkeley 

California  

Utah  

Nevada  

Arizona  

Total  

Spokane 

Idaho  

Montana  

Oregon  

Washington  

. Total  

Total  for  12  districts 


Total  loans. 


No. 

Amount. 

2,522 

$17,766,350 

2,559 

10,770,390 

1,635 

6,568,750 

455 

1,026,200 

7,171 

$36,131,690 

3,147 

$11,101,500 

2,638 

5,266,900 

2,445 

5,714,600 

1,881 

2,878,900 

10,111 

$23,961,900 

10,643 

$29,999,156 

10,643 

$29,999,156 

2,931 

$9,588,700 

1,483 

4,202,100 

38 

172,600 

234 

615,500 

4,686 

$14,578,900 

2,517 

$ 7,178,645 

4,116 

10,102,850 

3,155 

9,188,080 

4,556 

9,825,045 

14,344 

$36,294,620 

103,672 

$271,317,876 

Federal  Land  Banks. 

The  federal  farm  loan  system  is  essentially  a farmer’s  banking 
system,  and  the  law  contemplates  that  the  farmers  shall  eventually  own 
and  control  it.  The  borrowers  in  the  farm  loan  associations  will  unti- 
mately  become  the  entire  owners  of  the  federal  land  banks,  as  the  gov- 
ernment stock  and  the  stock  originally  subscribed  by  others  than  bor- 
rowers will  be  gradually  paid  off  and  retired,  and  the  subscriptions 
made  by  farm  loan  associations,  will  supplant  the  advances  which  the 
government  made  in  the  beginnig,  in  order  to  establish  the  system  on  a 
firm  basis.  During  the  year  ending  October  31,  1919,  federal  land 
banks  refunded  $572,569  to  the  government,  thereby  reducing  the  gov- 
ernment holding  of  stock  to  $7,693,240. 

Farm  loans  made  by  the  federal  land  banks.  The  following  state- 
ment compiled  from  data  supplied  by  the  Federal  Farm  Loan  Bureau 
shows  the  total  number  of  federal  farm  loans  made  by  each  of  the 
twelve  federal  land  banks  in  their  respective  districts  from  date  of  or- 
ganization to  October  31,  1919,  inclusive. 


Statement  Showing  Loans  Applied  for,  Approved  and  Closed  from ■ Organization  to  October  31,  1919. 


1095 


Loans  closed. 

Total. 

Amount. 

$10,433,445 

10,928.300 

14,442,495 

18,900,100 

18,667,930 

21,596,280 

35,383.000 

36,131,690 

23.961.900 
29,999,146 

14.578.900 
36,294.620 

$271,317,816 

6 

55 

3,771 
4,288 
6,804 
6,505 
12, 769 
9.374 
13,206 
7,171 
10,111 
10,643 
4,686 
14,344 

103, 672 

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When  a farmer  borrows  money  he  is  required  to  buy  stock  of  his 
local  association  equal  to  5 per  cent  of  his  loan.  This  stock  is  held  by 
the  local  loan  association  as  collateral  security  until  the  mortgage  is 
paid,  when  the  money  is  returned  to  him,  or  he  may  use  it  as  the  last 
payment  of  his  debt.  The  local  association  uses  the  money  which  the 
borrower  pays  for  his  stock  to  buy  stock  in  the  federal  land  bank ; this 
is  done  to  increase  the  land  bank’s  capital  in  order  that  it  may  make 
more  loans.  The  law  provides  for  the  automatic  increase  of  the  capital 
of  the  bank  because  each  local  farm  loan  association  must  buy  stock  in 
the  federal  land  bank  equal  to  5 per  cent  of  the  loans  it  procures  for 
its  members.  Now,  since  each  land  bank  is  permitted  to  lend  twenty 
times  its  capital  to  the  members  of  the  association,  it  will  be  seen  that 
the  loaning  capacity  of  the  bank  is  increased  twenty  thousand  for  each 
one  thousand  dollars  added  to  its  capital,  the  ratio  between  the  capital 
and  the  loaning  capacity  always  remaining  the  same.  Accordingly, 
there  is  no  limit  to  the  capacity  of  the  land  bank  to  meet  the  needs  of 
the  borrower  so  long  as  it  can  sell  its  bonds.  If  the  loans  are  conserva- 
tively made,  no  losses  "can  reasonably  occur  which  would  at  any  time 
depreciate  the  value  of  the  bonds. 

Terms  and  conditions  of  loans  made  by  federal  land  banks.  The 
restrictions  placed  on  federal  land  banks  in  making  loans  are  definitely 
set  forth  in  section  12  of  the  farm  loan  act  as  follows : 

“Sec.  12.  That  no  federal  land  bank  organized  under  this  act 
shall  make  loans  except  upon  the  following  terms  and  conditions : 

“First.  Said  loans  shall  be  secured  by  duly  recorded  first  mort- 
gages on  farm  land  within  the  land  bank  district  in  which  the  bank  is 
situated. 

“Second.  Every  mortgage  shall  contain  an  agreement  providing 
for  the  repayment  of  the  loan  on  an  amortization  plan  by  means  of  a 
fixed  number  of  annual  or  semi-annual  installments  sufficient  to  cover, 
first,  a charge  on  the  loan,  at  a rate  not  exceeding  the  interest  rate  in  the 
last  series  of  farm  loan  bonds  issued  by  the  land  bank  making  the  loan ; 
second,  a charge  for  administration  and  profits  at  a rate  not  exceeding 
one  per  centum  per  annum  on  the  unpaid  principal,  said  two  rates  com- 
bined constituting  the  interest  rate  on  the  mortgage ; and  third,  such 
amounts  to  be  applied  on  the  principal  as  will  extinguish  the  debt  within 
an  agreed  period,  not  less  than  five  years  nor  more  than  forty  years: 
Provided,  that  after  five  years  from  the  date  upon  which  a loan  is 
made  additional  payments  in  sums  of  $25  or  any  multiple  thereof  for 
the  reduction  of  the  principal,  or  the  payment  of  the  entire  principal, 
may  be  made  on  any  regular  installment  date  under  the  rules  and  regu- 
lations of  the  Federal  Farm  Loan  Board:  And  provided  further,  that 
before  the  first  issue  of  farm  loan  bonds  by  any  land  bank  the  interest 
rate  on  mortgages  may  be  determined  in  the  discretion  of  said  land 
bank,  subject  to  the  provisions  and  limitations  of  this  act. 

“Third.  No  loan  on  mortgage  shall  be  made  under  this  act  at  a 
rate  of  interest  exceeding  6 per  centum  per  annum,  exclusive  of 
amortization  payments. 

“Fourth.  Such  loans  may  be  made  for  the  following  purposes  and 
for  no  other: 


1097 


“(a)  To  provide  for  the  purchase  of  land  for  agricultural  use». 

“(b)  To  provide  for  the  purchase  of  equipment,  fertilizers  and 
live  stock  necessary  for  the  proper  and  reasonable  operations  of  the 
mortgaged  farm;  the  term  “equipment”  to  be  defined  by  the  Federal 
Farm  Loan  Board. 

“(c)  To  provide  buildings  and  for  the  improvement  of  farm 
lands ; the  term  “improvement”  to  be  defined  by  the  Federal  Farm  Loan 
Board. 

“(d)  To  liquidate  indebtedness  of  the  owner  of  the  land  mort- 
gaged, existing  at  the  time  of  the  organization  of  the  first  national  farm 
loan  association  established  in  or  for  the  county  in  which  the  land 
mortgaged  is  situated,  or  indebtedness  subsequently  incurred,  for  pur- 
poses mentioned  in  this  section. 

“Fifth.  No  such  loan  shall  exceed  50  per  centum  of  the  value  of 
the  land  mortgaged  and  20  per  centum  of  the  value  of  the  permanent,, 
insured  improvements  thereon,  said  value  to  be  ascertained  by  appraisal, 
as  provided  in  Sec.  10  of  this  act.  In  making  said  appraisal  the  value 
of  the  land  for  agricultural  purposes  shall  be  the  basis  of  appraisal  and 
the  earning  power  of  said  land  shall  be  a principal  factor. 

“A  reappraisal  may  be  permitted  at  any  time  in  the  discretion  of 
the  federal  land  bank,  and  such  additional  loan  may  be  granted  as  such 
reappraisal  will  warrant  under  the  provisions  of  this  paragraph.  When- 
ever the  amount  of  the  loan  applied  for  exceeds  the  amount  that  ma y 
be  loaned  under  the  appraisal  as  herein  limited,  such  loan  may  be- 
granted  to  the  amount  permitted  under  the  terms  of  this  paragraph, 
without  requiring  a new  application  or  appraisal. 

“Sixth.  No  such  loan  shall  be  made  to  any  person  who  is  not  at 
the  time,  or  shortly  to  become,  engaged  in  the  cultivation  of  the  farm 
mortgaged.  In  case  of  the  sale  of  the  mortgaged  land,  the  federal  land 
bank  may  permit  said  mortgage  and  the  stock  interests  of  the  vendor 
to  be  assumed  by  the  purchaser.  In  case  of  the  death  of  the  mortgagor 
his  heir  or  heirs,  or  his  legal  representative  or  representatives  shall 
have  the  option,  within  sixty  days  of  such  death,  to  assume  the  mort- 
gage and  stock  interests  of  the  deceased. 

“Seventh.  The  amount  of  loans  to  any  one  borrower  shall  in  my 
case  exceed  a maximum  of  $10,000,  nor  shall  any  loan  be  for  a less  sums 
than  $100. 

“Eighth.  Every  applicant  for  a loan  under  the  terms  of  -this  act 
shall  make  application  on  a form  to  be  prescribed  for  that  purpose  by 
the  Federal  Farm  Loan  Board,  and  such  applicant  shall  state  the  ob- 
jects to  which  the  proceeds  of  said  loan  are  to  be  applied,  and  shall  af- 
ford such  other  information  as  may  be  required. 

“Ninth.  Every  borrower  shall  pay  simple  interest  on  defaulted 
payments  at  the  rate  of  8 per  centum  per  annum,  and  by  express  cove- 
nant in  his  mortgage  deed  shall  undertake  to  pay,  when  due,  all  taxes, 
liens,  judgments  or  assessments  which  may  be  lawfully  assessed  against 
the  land  mortgaged.  Taxes,  liens,  judgments  or  assessments  not  paid 
when  due,  and  paid  by  the  mortgagee,  shall  become  a part  of  the  mort- 
gage debt  and  shall  bear  simple  interest  at  the  rate  of  8 per  centum  per 
annum.  Every  borrower  shall  undertake  to  keep  insured  to  the  satis- 


1098 


faction  of  the  Federal  Farm  Loan  Board  all  buildings,  the  value  ot 
which  was  a factor  in  determining  the  amount  of  the  loan.  Insurance 
shall  be  made  payable  to  the  mortgagee  as  its  interest  may  appear  at 
time  of  loss,  and,  at  the  option  of  the  mortgagor  and  subject  to  gen- 
eral regulations  of  the  Federal  Farm  Loan  Board,  sums  so  received  may 
be  used  to  pay  for  reconstruction  of  the  buildings  destroyed. 

“Tenth.  Every  borrower  who  shall  be  granted  a loan  under  the 
provisions  of  this  act  shall  enter  into  an  agreement,  in  form  and  under 
conditions  to  be  prescribed  by  the  Federal  Farm  Loan  Board,  that  if  the 
whole  or  any  portion  of  his  loan  shall  be  expended  for  purposes  other 
than  those  specified  in  his  original  application,  or  if  the  borrower  shall 
be  in  default  in  respect  to  any  condition  or  covenant  of  the  mortgage, 
the  whole  of  said  loan  shall,  at  the  option  of  the  mortgagee,  become  due 
and  payable  forthwith:  Provided,  that  the  borrower  may  use  part  of 

said  loan  to  pay  for  his  stock  in  the  farm  loan  association,  and  the  land 
bank  holding  such  mortgage  may  permit  said  loan  to  be  used  for  any 
purpose  specified  in  subsection  fourth  of  this  section. 

“Eleventh.  That  no  loan  or  the  mortgage  securing  the  same  shall 
be  impaired  or  invalidated  by  reason  of  the  exercise  of  any  power  by 
any  federal  land  bank  or  national  farm  loan  association  in  excess  of 
the  powers  herein  granted  or  any  limitations  thereon. 

“Funds  transmitted  to  farm  loan  associations  by  Federal  land 
banks  to  be  loaned  to  its  members  shall  be  in  current  funds,  or  farm 
loan  bonds,  at  the  option  of  the  borrower.” 

Powers  of  federal  land  banks.  The  powers  of  federal  land  banks 
are  summarized  in  Sec.  13  of  the  law  as  follows : 

“Sec.  13.  That  every  federal  land  bank  shall  have  power,  subject 
to  the  limitations  and  requirements  of  this  act — 

“First.  To  issue,  subject  to  the  approval  of  the  Federal  Farm 
Loan  Board,  and  to  selL  farm  loan  bonds  of  the  kinds  authorized  in 
this  act,  to  buy  the  same  for  its  own  account,  and  to  retire  the  same  at 
or  before  maturity. 

“Second.  To  invest  such  funds  as  may  be  in  its  possession  in  the 
purchase  of  qualified  first  mortgages  on  farm  lands  situated  within  the 
federal  land  bank  district  within  which  it  is  organized  or  for  which  it 
is  acting. 

“Third.  To  receive  and  to  deposit  in  trust  with  the  farm  loan 
registrar  for  the  district,  to  be  by  him  held  as  collateral  security  for 
farm  loan  bonds,  first  mortgages  upon  farm  land  qualified  under  sec- 
tion 12  of  this  act,  and  to  empower  national  farm  loan  associations,  or 
duly  authorized  agents,  to  collect  and  immediately  pay  over  to  said  land 
banks  the  dues,  interest,  amortization  installments  and  other  sums  pay- 
able under  the  terms,  conditions,  and  covenants  of  the  mortgages  and  of 
the  bonds  secured  thereby. 

“Fourth.  To  acquire  and  dispose  of — 

“(a)  Such  property,  real  or  personal,  as  maybe  necessary  or  con- 
venient for  the  transaction  of  its  business,  which,  however,  may  be  in 
part  leased  to  others  for  revenue  purposes. 

“(b)  Parcels  of  land  acquired  in  satisfaction  of  debts  or  pur- 
chased at  sales  under  judgments,  decrees,  or  mortgages  held  by  it.  But 


1099 


no  such  bank  shall  hold  title  and  possession  of  any  real  estate  pur- 
chased or  acquired  to  secure  any  debt  due  to  it,  for  a longer  period 
than  five  years,  except  with  the  special  approval  of  the  Federal  Farm 
Loan  Board  in  writing. 

“Fifth.  To  deposit  its  securities,  and  its  current  funds,  subject  to 
check,  with  any  member  of  the  Federal  Reserve  System,  and  to  re- 
ceive interest  on  the  same  as  may  be  agreed. 

“Sixth.  To  accept  deposits  of  securities  or  of  current  f finds  from 
national  farm  loan  associations  holding  its  shares,  but  to  pay  no  in- 
terest on  such  deposits. 

“Seventh.  To  borrow  money,  to  give  security  therefor,  and  to 
pay  interest  thereon. 

“Eighth.  To  buy  and  sell  United  States  bonds. 

“Ninth.  To  charge  applicants  for  loans  and  borrowers,  under 
rules  and  regulations  promulgated  by  the  Federal  Farm  Loan  Boardr 
reasonable  fees  not  exceeding  the  actual  cost  of  appraisal  and  de- 
termination of  title.  Legal  fees  and  recording  charges  imposed  by  law 
in  the  State  where  the  land  to  be  mortgaged  is  located  may  also  be  in- 
cluded in  the  preliminary  costs  of  negotiating  mortgage  loans.  The 
borrower  may  pay  such  fees  and  charges  or  he  may  arrange  with  the 
federal  land  bank  making  the  loan  to  advance  the  same,  in  which  case 
said  expenses  shall  be  made  a part  of  the  face  of  the  loan  and  paid  off 
in  amortization  payments.  Such  addition  to  the  loan  shall  not  be  per- 
mitted to  increase  said  loan  above  the  limitations  provided  in  sec- 
tion 12.” 

Restrictions  on  federal  land  banks.  The  following  restrictions 
which  the  law  places  on  federal  land  banks  are  definitely  set  forth  in 
Sec.  14. 

“Sec.  14.  That  no  federal  land  bank  shall  have  power — 

“First.  To  accept  deposits  of  current  funds  payable  upon  de- 
mand except  from  its  own  stockholders,  or  to  transact  any  banking  or 
other  business  not  expressly  authorized  by  the  provisions  of  this  act. 

“Second.  To  loan  on  first  mortgages  except  through  national  farm 
loan  associations  as  provided  in  section  7 and  section  8 of  this  act,  or 
through  agents  as  provided  in  section  15. 

“Third.  To  accept  any  mortgages  on  real  estate  except  first 
mortgages  created  subject  to  all  limitations  imposed  by  section  12  of 
this  act,  and  those  taken  as  additional  security  for  existing  loans. 

“Fourth.  To  issue  or  obligate  itself  for  outstanding  farm  loan 
bonds  in  excess  of  twenty  times  the  amount  of  its  capital  and  surplus,, 
or  to  receive  from  any  national  farm  loan  association  additional  mort- 
gages when  the  principal  remaining  unpaid  upon  mortgages  already 
received  from  such  association  shall  exceed  twenty  times  the  amount 
of  its  capital  stock  owned  by  such  association. 

“Fifth.  To  demand  or  receive,  under  any  form  or  pretense,  any 
commission  or  charge  not  specifically  authorized  in  this  act.” 

Agents  *of  federal  land  banks.  After  the  act  has  been  in  effect  for 
a year  federal  land  banks  are  authorized  to  make  loans  on  farm  lands 
through  agents  approved  by  the  Federal  Farm  Loan  Board  whenever 


1100 


it  appears  that  national  farm  loan  associations  have  not  been  formed 
and  are  not  likely  to  be  formed  in  any  locality  because  of  peculiar  local 
conditions. 

Loans  made  through  agents  are  subject  to  the  same  conditions 
and  restrictions  as  if  they  were  made  through  national  farm  loan  asso- 
ciations ; but  no  agent  may  be  employed  other  than  a duly  incorporated 
bank,  trust  company,  mortgage  company  or  savings  institution  char- 
tered by  the  state  in  which  it  has  its  principal  office. 

Federal  land  banks  may  pay  such  agents  the  actual  expenses  con- 
nected with  making  loans ; such  expenses  become  part  of  the  loan  and 
are  paid  off  in  amortization  payments.  In  addition,  agents  may  be 
allowed  a commission  not  to  exceed  one-half  of  one  per  cent  per  an- 
num upon  the  unpaid  principal  of  the  loan.  Such  commission  is  to  be 
deducted  from  dividends  payable  to  the  borrower  on  his  stock  in  the 
federal  land  bank. 

Agents  must  indorse  and  become  liable  upon  mortgages  received 
from  them  and  such  mortgages  may  not  exceed  ten  times  the  amount 
of  the  agent’s  capital  and  surplus.  They  may  further  be  required  to 
collect  and  remit  payments  on  loans  without  charge.  Whenever,  the 
district  represented  by  any  agent  is  adequately  served  by  national  farm 
loan  associations  no  further  loans  may  be  negotiated  therein  by  agents. 

Bonds  of  federal  land  banks.  While  the  government  does  not 
guarantee  the  bonds  of  the  federal  land  banks,  they  are  issued  under 
the  supervision  of  the  government  and  cannot  be  issued  until  the  gov- 
ernment authorities  have  passed  upon  the  security  and  satisfied  them- 
selves that  each  dollar  of  bonds  issued  is  secured  by  at  least  two  dollars 
worth  of  land,  and  each  bond  contains  on  its  face  a certificate  of  its 
regularity  signed  by  the  Federal  Farm  Loan  Commissioner,  a govern- 
ment official.  In  addition  they  are  secured  by  the  5 per  cent  stock 
owned  by  each  farmer  borrower,  and  held  as  collateral  security  by  the 
local  loan  associations,  and  if  that  is  not  sufficient,  there  is  the  ad- 
ditional 5 per  cent  liability  against  each  farmer  stockholder ; moreover, 
the  local  farm  loan  associations  are  required  to  indorse  every  loan 
made  to  its  members  by  the  federal  land  bank.  The  bonds  are  also 
backed  by  the  resources  of  the  12  federal  land  banks  now  established 
in  the  United  States.  The  wide  distribution  of  the  security,  unaffected 
by  local  conditions  in  any  part  of  the  nation,  contributes  greatly  to  its 
value  and  stability;  for,  as  a matter  of  fact,  the  farm  loan  bonds  are 
backed  by  at, least  twice  their  face  value,  plus. the  indorsement  of  the 
national  farm  loan  associations,  plus  the  resources  of  the  12  federal 
land  banks  located  throughout  the  country. 


Joint  Stock  Land  Banks. 

Differentiated  from  federal  land  banks.  The  joint  stock  land 
banks  are  organized  under  section  16  of  the  federal  farm  loan  act. 
These  joint  stock  banks  are  private  institutions  intended  for  the  invest- 
ment of  private  capital,  but  they  are  supervised  by  the  Federal  Farm 


1101 


Loan  Board  and  inspected  by  its  examiners,  and  appraisals  made  by 
them  in  placing  first  mortgage  loans  are  likewise  under  the  control  of 
the  board.  They  have  no  connection  with  the  federal  land  banks  and 
are  distinguished  from  them  as  being  cooperative  associations  of 
lenders ; whereas,  the  national  farm  loan  associations  and  the  federal 
land  banks  operate  as  cooperative  associations  of  borrowers. 

The  act  provides  that  private  individuals  may  organize  joint  stock 
land  banks  with  capital  stock  of  at  least  $250,000  each,  and  consisting 
of  not  less  than  10  stockholders.  One-half  of  the  stock  is  to  be  paid 
up  when  the  bank  starts  business,  and  the  other  half  is  subject  to  call. 
The  shareholders  are  individually  responsible,  equally  and  ratably,  and 
not  one  for  another,  to  the  extent  of  the  par  value  of  the  stock  owned 
by  them  and  in  addition  to  the  amount  paid  in  and  represented  by  their 
shares. 

The  joint  stock  bank  has  the  right  to  issue  bonds  after  its  capital 
is  fully  paid  up,  just  as  the  federal  land  banks  do,  but  it  may  not  issue 
bonds  aggregating  more  than  fifteen  times  the  amount  of  its  capital 
and  surplus.  Nothing  but  a first  mortgage  may  be  utilized  as  security 
for  an  issue  of  bonds.  After  the  mortgage  loans  are  made  they  are 
deposited  with  the  registrar  of  the  federal  land  bank  district,  who  for- 
wards them  to  the  Federal  Farm  Loan  Board  at  Washington  for  ap- 
proval. When  the  loans  have  been  approved  the  board  issues  joint 
stock  land  bank  bonds  to  the  bank  which  deposited  the  loans.  The 
sale  of  these  bonds  furnishes  additional  capital  for  further  loans. 

The  joint  stock  bank  may  make  mortgage  loans  at  a rate  of  1 per 
cent  per  annum  above  the  rate  which  its  last  issue  of  bonds  bears,  but 
they  are  not  permitted  to  charge  over  6 per  cent  interest. 

Joint  stock  banks  operate  under  the  amortization  plan,  the  same 
as  the  federal  land  banks. 

Except  as  otherwise  provided  in  the  law,  joint  stock  land  banks 
have  the  same  general  powers  and  limitations  as  federal  land  banks, 
but  they  are  specifically  exempt  from  a number  of  provisions  applic- 
able to  federal  land  banks.  The  main  difference  in  the  regulation  and 
supervision  of  the  two  institutions  arises  from  the  fact  that  one  is  a 
cooperative  association  of  borrowers  and  the  other  a cooperative  asso- 
ciation of  lenders. 

Farm  loans  made  by  the  joint  stock  land  banks.  The  following 
tables  show  the  loans  made  by  joint  stock  land  banks  now  operating 
under  the  federal  act.  The  different  banks  are  arranged  in  order  ac- 
cording to  priority  of  organization.  This  arrangement  presents  the 
chronological  as  well  as  the  geographical  development  of  the  joint 
stock  banks  throughout  the  country.  The  joint  stock  banks  may  make 
loans  on  agricultural  land  only  in  the  state  in  which  they  are  located 
and  one  adjoining  state. 


Statement  showing  total  loans  of  joint  stock  loan  banks  to  October  31,  1919,  inclusive. 

[Banks  are  arranged  chronologically  according  to  priority  of  organization.] 

Total  Loans  Closed  to 

Name.  Location.  States  October  31,  1919. 

Joint  Stock  Land  Bank Sioux  City,  Iowa Iowa  and  South  Dakota $ 1,281,200.00 


1102 


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First  Illinois- 


1103 


Consolidated  Statement  of  Condition  of  the  Joint  Stock  Land  Banks 


at  the  Close  of  Business  October  31,  1919.  ' 

ASSETS. 

Mortgage  Loans  $47,633,775.83 


Subtotal  48,308,832.63 

Les-s-Amortization  payments  216,016.10 


Net  Mortgage  Loans  $48,092,816.53 

U.  S.  Government  Bonds  and  Securities 8,486,879.49 

Accrued  Interest  on  U.  S Bonds 89,163.18 

Farm  Loan  Bonds  on  Hand  (unsold) 2,419,900.00 

Cash  on  Hand  and  in  Banks 3,415,938.40 

Banking  House  247,000.00 

Furniture  and  Fixtures  34,371.84 

Accounts  Receivable  60,554.00 

Other  Assets  70,461.95 


Total  Assets  $62,917,085.39 

LIABILITIES. 

Capital  Stock  Paid  in $ 7,812,050.00 

Surplus  Paid  in  151,415.00 

Reserve  35,231.65 

Farm  Loan  Bonds  Authorized 46,405,000.00 

Reserved  for  Interest  on  Farm  Loan  Bonds 1,023.163.38 

Bills  Payable  (Money  and  Bonds  borrowed) 6,006,424.41 

Accounts  Payable  1,084,766.05 

Other  Liabilities  365,673.94 

Excess  of  Earnings  over  Expenses  and  Interest  Charges 33,360.98 


$62,917,085.39 


Amortization  Plan  of  the  Federal  System. 

Loans  made  by  federal  land  banks  or  by  joint  stock  land  banks 
must  be  made  on  the  amortization  plan  and  no  mortgage  made  on  any 
other  plan  can  be  accepted  as  a basis  for  any  issue  of  farm  loan  bonds. 

This  process  of  paying  off  an  indebtedness  by  installment  pay- 
ments of  a fixed  amount,  which  includes  interest  and  a part  of  the 
principal,  throughout  a period  of  years,  enables  a farmer  to  take  a 
large  loan  without  undue  risk.  Under  the  federal  plan  of  amortiza- 
tion a mortgage  loan  may  run  from  5 to  40  years  at  the  option  of 
the  borrower.  The  payment  of  the  interest  rate  and  1 per  cent  addi- 
tional per  year  applied  on  the  principal  will  wipe  out  the  mortgage  in 
about  36  years.  This  period  may  be  shortened  by  making  additional 
payments  on  the  principal,  from  time  to  time,  as  the  farmer  may  find 
it  convenient. 

The  amortization  payments  may  be  made  annually  or  semi- 
annually, but  the  semi-annual  system  has  been  adopted  as  the  stand- 
ard, as  it  is  usually  an  easier  method  for  a farmer  operating  a small 
farm.  Thus,  the  semi-annual  payment  on  a $1,000  mortgage  for 
36  years  at  5 per  cent  would  require  a payment  of  $30  every  6 months. 
This  payment  would  wipe  out  the  mortgage  and  discharge  it  at  the 
end  of  the  thirty-six  year  period.  The  farmer  always  has  the  privilege 
of  making  additional  payments  after  the  mortgage  has  run  for  a per- 
iod of  5 years.  After  that  time  he  can  wipe  out  his  loan  in  whole 
or  in  part  on  any  interest  pay  day. 


1104 


Amortization  methods  of  the  federal  land  banks  and  the  joint 
stock  land  banks . The  amortization  methods  of  the  land  banks  under 
the  federal  system  have  been  standardized,  so  that  it  is  very  easy 
to  make  these  payments  to  the  land  bank  from  which  the  loan  has 
been  taken.' 

The  following  table  shows  the  application  of  succeeding  instal- 
ments in  the  payment  of  interest  and  principal  until  the  entire  in- 
debtedness is  amortized. 


[A  loan  of  $1,000  at  5 per  cent  interest  repayable  in  35  years  as  compared  with  a straight 
loan  for  the  same  amount  and  period  of  loan.] 


Payment  Number. 

Amortization  loan. 

Straight  loan. 

Install- 

ment. 

Interest. 

Applied 
on  prin- 
cipal. 

Principal 

still 

unpaid. 

Interest. 

Principal 

still 

unpaid. 

$65  00 

$55  00 

$10  00 

$990  00 

$55  00 

$1,000 

2 

65  00 

54  45 

10  55 

979  45 

55  00 

1,000 

3 

65  00 

53  87 

11  13 

968  32 

55  00 

1,000 

4 

65  00 

53  26 

11  74 

956  58 

55  00 

1,000 

5 

65  00 

52  61 

12  39 

.*944  19 

55  00 

1.000 

6 ; 

65  00 

51  93 

13  07 

931  12 

55  00 

1,000 

7 

65  00 

51  21 

13  79 

917  33 

55  00 

1.000 

8 

65  00 

50  45 

14  55 

902  78 

55  00 

1,000 

9 

65  00 

49  65 

15  35 

887  43 

55  00 

1,000 

10 

65  00 

48  81 

16  19 

871  24 

55  00 

1,000 

11 

65  00 

47  92 

17  08 

854  16 

55  00 

1,000 

65  00 

46  98 

18  02 

836  14 

55  00 

1,000 

65  00 

45  99 

19  01 

817  13 

55  00 

1,000 

14 

65  00 

44  94 

20  06 

797  07 

55  00 

1,000 

15 

65  00 

43  84 

21  16 

775  91 

55  00 

1,000 

16 

65  00 

42  68 

22  32 

753  59 

55  00 

1,000 

17 

65  00 

41  45 

23  55 

730  04 

55  00 

1,000 

18 

65  00 

40  15 

24  85 

705  19 

55  00 

1,000 

19 

65  00 

38  79 

26  21 

678  98 

55  00 

1,000 

20 

65  00 

37  34 

27  66 

651  32 

55  00 

1,000 

21 

65  00 

35  82 

29  18 

622  14 

55  00 

1,000 

65  00 

34  22 

30  78 

591  36 

55  00 

1,000 

65  00 

32  52 

32  48 

558  88 

55  00 

1,000 

65  00 

30  74 

34  26 

524  62 

55  00 

1,000 

65  00 

28  85 

36  15 

488  47 

55  09 

1.000 

65  00 

26  87 

38  13 

450  34 

55  00 

1,000 

27 

65  00 

24  77 

40  23 

410  11 

55  00 

1,000 

28 

65  00 

22  56 

42  44 

367  67 

55  00 

1,000 

29 

65  00 

20  22 

44  78 

322  89 

55  00 

1,000 

30 

65  00 

17  76 

47  24 

*75  65 

55  00 

1,000 

31 

65  00 

15  16 

49  84 

225  81 

55  00 

1,000 

32 

65  00 

12  42 

52  58 

173  23 

55  00 

1,000 

33 

65  00 

9 53 

55  47 

117  76 

55  00 

1,000 

34 

65  00 

6 48 

58  52 

59  24 

55  00 

1.000 

35 

62  50 

3 26 

59  24 

55  00 

1,000 

$2,272  50 

$1,272  50 

$1,000  00 

$1,925  00 

$1,000 

Comparison  at  the  end  of  35  years; 

Under  straight  loan  plan— 

35  interest  payments  of  $55  each $1,925  00 

Principal  unpaid 1,000  00 

$2,925  00 

Under  amortization  plan — 

35  installments,  as  agreed,  paying  both  interest  and  principal $2,272  50 

Saving $652  50 


The  following  method  of  paying  off  ahead  of  time  has  recently 
been  promulgated  by  the  Federal  Farm  Loan  Board.  Its  advantages 
are  perfectly  plain  to  any  borrower.  The  regular  amortization  table 


1105 


can  be  used  during  the  entire  period  covered  by  the  mortgage  without 
any  puzzling  problem  in  arithmetic.  In  the  present  case,  the  loan  is 
paid  off  in  21  years  instead  of  35.  The  amount  of  interest  paid  is 
reduced  from  $1,272.50,  under  the  regular  amortized  35-year  loan, 
to  $768.78,  or  a saving  of  $503.72  in  interest. 


[A  35-years,  amortization  loan  of  $1,000  at  per  cent  interest,  but  with  the  privilege  of 
repaying  succeeding  sums  that  would  be  regularly  applied  on  the  principal.] 


Install- 

ment. 

Interest. 

Applied 
on  prin- 
cipal. 

Principal 

stiil 

unpaid. 

Addi- 

tional 

payment. 

Principal 

still 

unpaid. 

$65  00 

$55  00 

$10  00 

$990  00 

65  00 

54  45 

10  55 

979  45 

65  00 

53  87 

11  13 

968  32 

65  00 

53  26 

11  74 

956  58 

65  00 

5*  61 

12  39 

944  19 

$ 41  41 

$902  78 

65  00 

49  65 

15  35 

887  43 

887  43 

65  00 

48  81 

16  19 

871  24 

871  24 

65  00 

47  92 

17  08 

854  16 

854  16 

65  00 

46  98 

18  02 

836  14 

39  07 

797  07 

65  00 

43  84 

21  16 

I 775  91 

775  91 

65  00 

42  68 

22  32 

753  59 

753  59 

65  00 

41  45 

23  55 

730  04 

107  90 

622  14 

65  00 

34  22 

30  78 

591  36 

591  36 

65  00 

32  52 

32  48 

558  88 

70  41 

488  47 

65  00 

26  87 

38  13 

450  34 

450  34 

65  00 

24  77 

40  23 

410  11 

410  11 

65  00 

22  56 

42  44 

367  67 

92  02 

275  65 

65  00 

15  16 

49  84 

225  81 

225  81 

65  00 

12  42 

52  58 

173  23 

55  47 

117  76 

65  00 

6 48 

58  52 

59  24 

59  24 

62  50 

3 26 

59  24 

$1,362  50 

| 

$593  72 

cc 

1 

Payment  Number. 


1 

2 

3  

4  

5  

6 (9). 

7  

8  

9 

10  (15) 

11  

12 

13  (22) 

14  

15  (26) 

16  

17  

18  (31) 

19  

20  (34) 

21  


Application  of  amortisation  and  interest  payments.  The  law 
makes  the  following  provision  for  the  application  of  amortization 
and  interest  payments  collected  on  pledged  mortgages  held  in  trust : 
Amortization  and  other  payments  on  the  principal  of  first  mort- 
gages held  by  a farm  loan  registrar  as  collateral  security  for  the 
issue  of  farm  loan  bonds  constitute  a trust  fund  in  the  hands  of  the 
federal  land  bank  or  joint  stock  land  bank  receiving  the  same,  and 
must  be  applied  as  follows : 

In  the  case  of  a federal  land  bank — 

(a)  To  pay  off  farm  loan  bonds  issued  by  said  bank  as  they 
mature. 

(b)  To  purchase  at  or  below  par  farm  loan  bonds  issued  by  said 
bank  or  by  any  other  federal  land  bank. 

(c)  To  loan  on  first  mortgages  on  farm  lands  within  the  land 
bank  district,  qualified  under  this  act  as  collateral  security  for  an  issue 
of  farm  Joan  bonds. 

(d)  To  purchase  United  States  government  bonds. 

In  the  case  of  a joint  stock  land  bank — 

(a)  To  pay  off  farm  loan  bonds  issued  by  said  bank  as  they 

mature. 

(b)  To  purchase  at  or  below  par  farm  loan  bonds. 

(c)  To  loan  on  first  mortgages  qualified  under  section  16  of 

this  act. 


1106 


(d)  To  purchase  United  States  government  bonds. 

The  farm  loan  bonds,  first  mortgages,  United  States  government 
bonds,  or  cash  constituting  the  trust  fund  aforesaid,  are  forthwith 
to  be  deposited  with  the  farm  loan  registrar  as  substituted  collateral 
security  in  place  of  the  sums  paid  on  the  principal  of  indorsed  mort- 
gages held  by  him  in  trust. 

Every  federal  land  bank,  or  joint  stock  land  bank,  is  required 
to  notify  the  farm  loan  registrar  of  the  disposition  of  all  payments 
made  on  the  principal  of  mortgages  held  as  collateral  security  for 
an  issue  of  farm  loan  bonds,  and  the  registrar  is  authorized  at  his 
discretion,  to  order  any  of  such  payments,  or  the  proceeds  thereof, 
wherever  deposited  or  however  invested,  to  be  immediately  trans- 
ferred to  his  account  as  trustee  aforesaid. 


Investments  in  Farm  Loan  Bonds. 

Provisions  safeguarding  investments.  Investments  in  farm  loan 
bonds  by  the  farming  population  of  the  country,  and  by  thrifty  in- 
vestors generally,  are  made  attractive  by  the  many  safeguards  which 
the  law  provides  in  their  issue.  The  following  sections  indicate  that 
the  act  gives  as  careful  consideration  to  safeguarding  the  interests 
of  investors  as  it  does  in  promoting  the  welfare  of  borrowers : 

“Application  for  farm  loan  bonds.  Sec.  18.  That  any  federal 
land  bank,  or  joint  stock  land  bank,  which  shall  have  voted  to  issue 
farm  loan  bonds  under  this  act,  shall  make  written  application  to  the 
Federal  Farm  Loan  Board,  through  the  farm,  loan  registrar  of  the 
district,  for  approval  of  such  issue.  With  said  application  said  land 
bank  shall  tender  to  said  farm  loan  registrar,  as  collateral  security, 
first  mortgages  on  farm  lands  qualified  under  the  provisions  of  sec- 
tion 12,  section  15,  or  section  16  of  this  act,  or  United  States  govern- 
ment bonds,  not  less  in  aggregate  amount  than  the  sum  of  the  bonds 
proposed  to  be  issued.  Said  bank  shall  furnish  with  such  mortgages 
a schedule  containing  a description  thereof  and  such  further  infor- 
mation as  may  be  prescribed  by  the  Federal  Farm  Loan  Board. 

“Upon  receipts  of  such  application  said  farm  loan  registrar  shall 
verify  said  schedule  and  shall  transmit  said  application  and  said 
schedule  to  the  Federal  Farm  Loan  Board,  giving  such  further  in- 
formation pertaining  thereto  as  he  may  possess.  The  Federal  Farm 
Loan  Board  shall  forthwith  cause  to  be  made  such  investigation  and 
appraisement  of  the  securities  tendered  as  it  shall  deem  wise,  and  it 
shall  grant  in  whole  or  in  part,  or  reject  entirely,  such  application. 

“The  Federal  Farm  Loan  Board  shall  promptly  transmit  its  de- 
cision as  to  any  issue  of  farm  loan  bonds  to  the  land  bank  applying 
for  the  same  and  to  the  farm  loan  registrar  of  the  district.  Said 
registrar  shall  furnish,  in  writing,  such  information  regarding  any 
issue  of  farm  loan  bonds  as  the  Federal  Farm  Loan  Board  may  at 
any  time  require. 


1107 


“No  issue  of  farm  loan  bonds  shall  be  authorized  unless  the 
Federal  Farm  Loan  Board  shall  approve  such  issue  in  writing. 

“Issue  of  farm  loan  bonds.  Sec.  19.  That  whenever  any  farm 
loan  registrar  shall  receive  from  the  Federal  Farm  Loan  Board  no- 
tice that  it  has  approved  any  issue  of  farm  loan  bonds  under  the 
provisions  of  section  18  he  shall  forthwith  take  such  steps  as  may  be 
necessary,  in  accordance  with  the  provisions  of  this  act,  to  insure 
the  prompt  execution  of  said  bonds  and  the  delivery  of  the  same  to 
the  land  bank  applying  therefor. 

“Whenever  the  Federal  Farm  Loan  Board  shall  reject  entirely 
any  application  for  an  issue  of  farm  loan  bonds,  the  first  mortgages 
and  bonds  tendered  to  the  farm  loan  registrar  as  collateral  security 
therefor  shall  be  forthwith  returned  to  said  land  bank  by  him. 

“Whenever  the  Federal  Farm  Loan  Board  shall  approve  an 
issue  of  farm  loan  bonds,  the  farm  loan  registrar  having  the  custody 
of  the  first  mortgages  and  bonds  tendered  as  collateral  security  for 
such  issue  of  bonds  shall  retain  in  his  custody  those  first  mortgages 
and  bonds  which  are  to  be  held  as  collateral  security,  and  shall  return 
to  the  bank  owning  the  same  any  of  said  mortgages  and  bonds  which 
are  not  to  be  held  by  him  as  collateral  security.  The  land  bank 
which  is  to  issue  said  farm  loan  bonds  shall  transfer  to  said  regis- 
trar, by  assignment,  in  trust,  all  first  mortgages  and  bonds  which 
are  to  be  held  by  said  registrar  as  collateral  security,  said  assignment 
providing  for  the  right  of  redemption  at  any  time  by  payment  as 
provided  in  this  Act  and  reserving  the  right  of  substitution  of  other 
mortgages  qualified  under  sections  12,  15,  and  16  of  this  act.  Said 
mortgages  and  bonds  shall  be  deposited  in  such  deposit  vault  or  bank 
as  the  Federal  Farm  Loan  Board  shall  approve,  subject  to  the  con- 
trol of  said  registrar  and  in  his  name  as  trustee  for  the  bank  issuing 
the  farm  loan  bonds  and  for  the  prospective  holders  of  said  farm 
loan  bonds. 

“No  mortgage  shall  be  accepted  by  a farm  loan  registrar  from  a 
land  bank  as  part  of  an  offering  to  secure  an  issue  of  farm  loan  bonds, 
either  originally  or  by  substitution,  except  first  mortgages  made  subject 
to  the  conditions  prescribed  in  said  sections  12,  15,  and  16. 

“It  shall  be  the  duty  of  each  farm  loan  registrar  to  see  that  the 
farm  loan  bonds  delivered  by  him  and  outstanding  do  not  exceed  the 
amount  of  collateral  security  pledged  therefor.  Such  registrar  may,  in 
his  discretion,  temporarily  accept,  in  place  of  mortgages  withdrawn, 
United  States  government  bonds  or  cash. 

“The  Federal  Farm  Loan  Board  may,  at  any  time,  call  upon  any 
land  bank  for  additional  security  to  protect  the  bonds  issued  by  it. 

“Form  of  farm  loan  bonds.  Sec.  20.  That  bonds  provided  for  in 
this  act  shall  be  issued  in  denominations  of  $25,  $50,  $100,  $500,  and 
$1,000;  they  shall  run  for  specified  minimum  and  maximum  periods, 
subject  to  payment  and  retirement,  at  the  option  of  the  land  bank,  at 
any  time  after  five  years  from  the  date  of  their  issue.  They  shall  have 
interest  coupons  attached,  payable  semi-annually,  and  shall  be  issued 
in  series  of  not  less  than  $50,000,  the  amount  and  terms  to  be  fixed  by 


1108 


the  Federal  Farm  Loan  Board.  They  shall  bear  a rate  of  interest  not 
to  exceed  5 per  centum  per  annum. 

“The  Federal  Farm  Loan  Board  shall  prescribe  rules  and  regula- 
tions concerning  the  circumstances  and  manner  in  which  farm  loan 
bonds  shall  be  paid  and  retired  under  the  provisions  of  this  act. 

“Farm  loan  bonds  shall  be  delivered  through  the  registrar  of  the 
district  to  the  bank  applying  for  the  same. 

“In  order  to  furnish  farm  loan  bonds  for  delivery  at  the  federal 
land  banks  and  joint  stock  land  banks,  the  Secretary  of  the  Treasury 
is  hereby  authorized  to  prepare  suitable  bonds  in  such  form,  subject  to 
the  provisions  of  this  act,  as  the  Federal  Farm  Loan  Board  may  ap- 
prove, such  bonds  when  prepared  to  be  held  in  the  treasury,  subject  to 
delivery  upon  order  of  the  Federal  Farm  Loan  Board.  The  engraved 
plates,  dies,  bed-pieces,  and  so  forth,  executed  in  connection  therewith 
shall  remain  in  the  custody  of  the  Secretary  of  the  Treasury.  Any  ex- 
penses incurred  in  the  preparation,  custody,  and  delivery  of  such  farm 
loan  bonds  shall  be  paid  by  the  Secretary  of  the  Treasury  from  any 
funds  in  the  treasury  not  otherwise  appropriated : Provided,  however, 
that  the  Secretary  shall  be  reimbursed  for  such  expenditures  by  the 
Federal  Farm  Loan  Board  through  assessment  upon  the  farm  land 
banks  in  proportion  to  the  work  executed.  They  may  be  exchanged 
into  registered  bonds  of  any  amount,  and  re-exchanged  into  coupon 
bonds,  at  the  option  of  the  holder,  under  rules  and  regulations  to  be 
prescribed  by  the  Federal  Farm  Loan  Board. 

“Special  provisions  of  farm  loan  bonds.  Sec.  21.  That  each  land 
bank  shall  be  bound  in  all  respects  by  the  acts  of  its  officers  in  signing 
and  issuing  farm  loan  bonds,  and  by  the  acts  of  the  Federal  Farm  Loan 
Board  in  authorizing  their  issue. 

“Every  federal  land  bank  issuing  farm  loan  bonds  shall  be  primar- 
ily liable  therefor,  and  shall  also  be  liable,  upon  presentation  of  farm 
loan  bond  coupons,  for  interest  payments  due  upon  any  farm  loan 
bonds  issued  by  other  federal  land  banks  and  remaining  unpaid  in  con- 
sequence of  the  default  of  such  other  land  banks ; and  every  such  bank 
shall  likewise  be  liable  for  such  portion  of  the  principal  of  farm  loan 
bonds  so  issued  as  shall  not  be  paid  after  the  assets  of  any  such  other 
land  banks  shall  have  been  liquidated  and  distributed : Provided,  that 
such  losses,  if  any,  either  of  interest  or  of  principal,  shall  be  assessed 
by  the  Federal  Farm  Loan  Board  against  solvent  land  banks  liable 
therefor  in  proportion  to  the  amount  of  farm  loan  bonds  which  each 
may  have  outstanding  at  the  time  of  such  assessment. 

“Every  federal  land  bank  shall  by  appropriate  action  of  its  board 
of  directors,  duly  recorded  in  its  minutes,  obligate  itself  to  become 
liable  on  farm  loan  bonds  as  provided  in  this  section. 

“Every  farm  loan  bond  issued  by  a federal  land  bank  shall  be 
signed  by  its  president  and  attested  by  its  secretary,  and  shall  contain 
in  the  face  thereof,  a certificate  signed  by  the  Farm  Loan  Commis- 
sioner to  the  efifect  that  it  is  issued  under  the  authority  of  the  Federal 
Farm  Loan  Act,  has  the  approval  in  form  and  issue  of  the  Federal 
Farm  Loan  Board,  and  is  legal  and  regular  in  all  respects;  that  it  is 


1109 


not  taxable  by  national,  state,  municipal,  or  local  authority;  that  it  is 
issued  against  collateral  security  of  United  States  government  bonds, 
or  indorsed  first  mortgages  on  farm  lands,  at  least  equal  in  amount  to 
the  bonds  issued ; and  that  all  federal  land  banks  are  liable  for  the 
payment  of  each  bond.” 


1110 


IV.  OTHER  FIRST  MORTGAGE  SYSTEMS. 


State  systems.  Most  of  the  states  that  have  developed  farm 
loan  systems  have  shown  a tendency  to  follow  the  federal  law  in  its 
general  outlines.  The  majority  of  the  states  accordingly  limit  their 
loans  to  about  50  per  cent  of  the  value  of  the  land,  and  make  no  pro- 
vision for  second  mortgages.  In  a number  of  cases,  the  states  follow 
the  federal  system  so  closely  that  the  net  result  is  duplicated  machinery 
for  accomplishing  the  same  purpose. 

It  has  been  urged  that  the  states  should  develop  systems  that 
would  supplement  the  federal  system  and  that  the  state  farm  loan 
bureaus  are  in  a peculiarly  advantageous  position  to  advance  loans  on 
second  mortgages  because  they  are  in  a position  to  check  up  local  con- 
ditions and  to  make  such  loans  without  undue  risk.  But  whatever 
reasons  have  been  urged  for  or  against  existing  methods,  the  fact  re- 
mains that  present  state  systems  frequently  duplicate  work  done  by  the 
Federal  Loan  Board. 

The  South  Dakota  constitution  provides  that  “the  State  or  any 
county  or  two  or  more  counties  jointly  may  establish  and  maintain  a 
system  of  rural  credits  and  thereby  loan  money  and  extend  credit  to 
the  people  of  this  State  upon  real  estate  security  in  such  manner  and 
upon  such  terms  and  conditions  as  may  be  prescribed  by  general 
law.”  . . . (Art.  13,  Sec.  1.) 

Under  this  provision  a rural  credit  system  was  enacted  in  South 
Dakota  in  1917.  (Rev.  Code  1919,  Secs.  10,  150-10,  173.)  And 
within  a two-year  period  a little  more  than  $10,000,000  was  loaned  on 
the  farm  lands  of  that  state. 

The  South  Dakota  law  limits  the  amount  that  can  be  loaned  to  70 
per  cent  of  the  appraised  value  of  the  land  and  40  per  cent  of  the  in- 
sured value  of  the  improvements.  The  maximum  amount  that  can  be 
loaned  to  any  one  person  is  $10,000.  The  interest  rate  for  farm  mort- 
gage loans  varies  from  5^2  to  6 per  cent.  Under  the  amortization  plan 
of  paying  the  principal,  the  borrower  actually  pays  7.26  per  cent  an- 
nually, in  two  semi-annual  payments  on  the  6 per  cent  basis,  and  6 . 88 
per  cent  on  the  5*4  per  cent  basis.  Payment  at  this  rate  for  a period  of 
30  years  pays  all  the  interest  and  wipes  out  the  principal.  A borrower 
may  pay  all  or  any  part  of  his  loan  on  any  interest  date  after  5 years. 
There  are  no  commissions  of  any  kind  to  be  paid  for  securing  loans 
and  the  borrower  gets  all  the  money  he  borrows ; none  being  retained 
for  stock  in  the  farm  land  bank,  as  is  the  case  under  the  federal  sys- 
tem. No  liability  is  incurred  by  the  borrower  except  for  his  own  loan. 
In  case  the  borrower  is  unable  to  meet  the  interest  payments  when  due, 
the  Farm  Loan  Board  may,  in  its  descretion,  defer  these  payments  for 


1111 


a reasonable  length  of  time.  The  interest  charge  on  all  overdue  pay- 
ments is  8 per  cent. 

Money  loaned  under  this  law  may  be  used  for  any  of  the  following 
purposes:  (1)  To  purchase  farm  land;  (2)  to  purchase  equipment, 

fertilizers,  etc.,  for  the  proper  and  reasonable  operation  of  the  mort- 
gaged land;  (3)  for  buildings  and  other  improvements  on  the  land; 
(4)  for  paying  mortgages  or  other  indebtedness  incurred  for  the  pur- 
poses provided  for  in  the  law. 

The  South  Dakota  law  follows  the  general  plan  of  the  federal  act. 
It  has  the  same  general  purpose,  and  it  operates  practically  in  competi- 
tion with  the  federal  farm  loan  system. 

Amendments  to  the  constitution  of  North  Dakota  adopted  in  19-18 
opened  the  way  for  the  development  of  state  farm  loans.  Sections  182 
and  185  as  amended  provide  the  basis  for  the  state  farm  loan  system. 

Sec.  182,  as  amended  in  1918 : “The  state  may  issue  or  guarantee 
the  payment  of  bonds,  provided  that  all  bonds  in  excess  of  $2,000,000 
shall  be  secured  by  first  mortgages  upon  real  estate  in  amounts  not  to 
exceed  one-half  of  its  value ; or  upon  real  and  personal  property  of 
state-owned  utilities,  enterprises,  or  industries,  in  amounts  not  exceed- 
ing its  value,  and  provided  further,  that  the  state  shall  not  issue  or 
guarantee  bonds  upon  the  property  of  state-owned  utilities,  enterprises 
or  industries  in  excess  of  $10,000,000. 

“No  future  indebtedness  shall  be  incurred  by  the  state  unless  evi- 
denced by  a bond  issue,  which  shall  be  authorized  by  law  for  certain 
purposes,  to  be  clearly  defined.  Every  law  authorizing  a bond  issue 
shall  provide  for  levying  an  annual  tax,  or  make  other  provision,  suffi- 
cient to  pay  the  interest  semi-annually,  and  the  principal  within  thirty 
years  from  the  passage  of  such  law,  and  shall  specially  appropriate  the 
proceeds  of  such  tax,  or  of  such  other  provisions,  to  the  payment  of 
said  principal  and  interest,  and  such  appropriation  shall  not  be  re- 
pealed nor  the  tax  or  other  provisions  discontinued  until  such  debt, 
both  principal  and  interest,  shall  have  been  paid. 

Sec.  185  as  amended  in  1918 : “The  state,  any  county  or  city  may 
make  internal  improvements  and  may  engage  in  any  industry,  enter- 
prise or  business  not  prohibited  by  Article  20  of  the  Constitution,  but 
neither  the  .state  nor  any  political  subdivision  thereof  shall  otherwise 
loan  or  give  its  credit  or  make  donations  to  or  in  aid  of  any  individual, 
association  or  corporation  except  for  reasonable  support  of  the  poor, 
nor  subscribe  to  or  become  the  owner  of  capital  stock  in  any  association 
or  corporation.” 

Pursuant  to  the  authority  granted  in  these  amendments  to  the  con- 
stitution the  state  legislature  in  1919  established  the  Bank  of  North 
Dakota  and  also  made  provision  for  the  issue  of  real  estate  bonds 
based  on  first  mortgages. 

The.  distinguishing  feature  of  the  North  Dakota  law  is  the  state 
bank  which  performs  practically  the  same  functions  for  the  state  farm 
loan  system  that  are  performed  in  the  federal  system  by  the  federal 
land  bank.  Although  the  bank  did  not  begin  business  until  July  28th, 
1919,  on  December  6th  of  that  year  it  had  made  loans  aggregating 


1112 


$1,700,000.  Additional  loans  amounting  to  $1,300,000  had  been  ap- 
proved subject  to  the  borrower  furnishing  a merchantable  title. 

In  construing  section  182  of  the  constitution  as  amended,  the  Su- 
preme Court  of  the  state  held  that  the  language  of  the  amended  section 
authorized  the  issue  of  $2,000,000  of  bonded  indebtedness,  unsecured 
except  by  the  faith  and  credit  of  the  state,  in  addition  to  any  bonded 
indebtedness  existing  at  the  time  of  its  adoption.  (State  v.  Hall,  173 
N.  W.  763  (1919).  This  decision  of  the  Supreme  Court,  given  in 
mandamus  proceedings  against  the  secretary  of  state  to  compel  him  to 
certify  the  bonds  as  within  the  debt  limit,  settled  the  question  as  to  the 
validity  of  the  bonds,  and  left  the  way  open  for  putting  the  rural  credit 
laws  into  practical  operation. 

The  state  of  Oregon  adopted  a constitutional  amendment  provid- 
ing for  rural  credits  in  1916.  It  furnishes  a typical  example  of  legis- 
lative details  embodied  in  a state  constitution,  and  reads  as  follows : 

“Constitution,  article  XI  a,  Rural  Credits,  Sec.  1.  Notwithstand-  . 
ing  the  limitations  contained  in  Section  7 of  Article  XI  of  this  constitu- 
tion, the  credit  of  the  state  may  be  loaned  and  indebtedness  incurred  to 
an  amount  not  exceeding  two  per  cent  of  the  assessed  valuation  of  all 
the  property  in  the  state  for  the  purpose  of  providing  funds  to  be 
loaned  upon  the  security  of  farm  lands  within  the  state,  subject  to  the 
limitations  herein  contained. 

“Sec.  2.  The  governor,  secretary  of  state,  and  state  treasurer  shall 
constitutute  the  state  land  board,  which  board  is  hereby  authorized  and 
directed  to  issue  and  sell  or  pledge  bonds  in  the  name  of  the  state  to  be 
known  as  Oregon  farm  credit  bonds  in  an  amount  not  to  exceed  said 
two  per  cent  of  the  assessed  valuation  of  all  the  property  in  the  state, 
and  to  place  the  proceeds  in  the  state  treasury  in  a fund  to  be  known 
as  the  “rural  credits  loan  fund.” 

“Sec.  3.  Said  bonds  shall  be  issued*  in  denominations  of  $25.00, 
$100.00,  $500.00,  and  $1,000.00,  and  shall  be  issued  in  series  of  $50,- 
000.00,  or  multiples  thereof,  drawn  to  mature  in  not  more  than  thirty- 
six  years.  They  shall  bear  interest  at  the  rate  of  four  per  cent  per 
annum  and  shall  be  exempt  from  all  taxes  levied  by  the  state  of  Ore- 
gon, or  any  of  its  subdivisions. 

“Sec.  4.  Said  state  land  board  is  authorized  and  directed  to  loqn 
the  moneys  in  said  rural  credits  loan  fund  to  owners  of  farm  lands 
in  Oregon  upon  notes  secured  by  mortgages  or  deeds  of  trust  consti- 
tuting first  liens  on  such  farm  lands  in  amounts  which  shall  not  exceed 
fifty  per  cent  of  the  value  of  such  lands,  nor  $50.00  per  acre  on  such 
lands,  nor  less  than  $200.00  nor  more  than  $5,000.00  to  any  individual. 
If  pending  applications  shall  at  any  time  exceed  the  funds  available, 
preference  shall  be  given  to  loans  not  exceeding  $2,000.00  in  amount. 

“Sec.  5.  Such  loans  shall  not  be  made  except  to  owners  who  oper- 
ate and  occupy  the  lands  mortgaged,  and  shall  be  made  only  for  the 
following  purposes:  (a)  The  payment  for  lands  purchased;  (b)  the 

purchase  of  livestock  and  other  equipment,  and  the  making  of  im- 
provements which,  in  the  judgment  of  said  board,  will  increase  the 
productivity  of  such  lands  or  add  to  their  value  as  a farm  home  in  a 


1113 


degree  to  justify  such  expenditure;  and  (c)  for  the  satisfaction  of 
encumbrances  upon  such  lands,  which,  in  the  judgment  of  said  board, 
were  incurred  or  assumed  by  said  applicant  for  the  aforesaid  purposes. 

“Sec.  6.  Every  applicant  for  a farm  loan  shall  state  clearly  in  his 
application  the  purposes  for  which  such  loan  is  desired,  and  upon  its 
approval  by  the  board  this  statement  shall  be  deemed  a part  of  the 
note  or  contract  under  which  the  loan  is  granted.  But  no  failure  to 
apply  such  funds  to  the  purposes  stated  in  such  application  or  enumer- 
ated herein  shall  invalidate  a loan  when  once  made,  nor  shall  anything 
herein  contained  be  deemed  to  prevent  any  farm  owner  from  selling  or 
leasing  lands  subject  to  such  encumbrance;  but  if  he  shall  violate  his 
said  contract  by  applying  the  moneys  borrowed  to  purposes  other  than 
those  stated  in  his  application  or  enumerated  herein,  or  if  he  shall  lease 
such  lands  or  sell  them  to  any  person  not  fulfilling  the  conditions  and 
purposes  provided  for  herein,  said  board  is  authorized  and  directed  to 
require  the  repayment  of  said  loan  upon  six  months  notice,  and  said 
note  or  contract  shall  contain  a clause  providing  therefor. 

“Sec.  7.  Such  loans  shall  be  repaid  with  interest  accruing  in  semi- 
annual or  annual  instalments  on  the  amortization  plan,  such  instalments 
being  fixed  at  such  sums  as  will  cover  the  interest  rate  and  will 
liquidate  the  debt  in  a period  to  be  agreed  on  between  said  board  and 
the  applicant,  such  period  to  be  not  less  than  ten  nor  moie  than  thirty- 
six  years ; but  any  debtor  may  liquidate  any  part  or  all  of  his  indebted- 
ness in  amounts  of  $50.00  or  multiples  thereof  upon  any  amortization 
payment  date. 

“Sec.  8.  The  rate  of  interest  on  loans  shall  be  5 per  cent  per 
annum,  provided  that  in  case  any  series  of  said  farm  credit  bonds  is 
sold  at  an  average  of  less  than  par,  the  board  may  charge  upon  such 
farm  loans  as  are  made  from  the  proceeds  of  the  series  so  sold  below 
par  a rate  of  interest  in  excess  of  5 per  cent,  but  which  shall  not  exceed 
by  more  than  1 per  cent  the  rate  which  the  state  must  pay  for  the 
funds  actually  obtained  from  the  disposal  of  its  said  bonds.  The  board, 
however,  shall  require  each  applicant  to  pay  an  initial  charge  of  1 per 
cent  of  the  loan  granted,  the  minimum  charge  to  be  $10.00  to  cover  the 
cost  of  appraisal  and  examination  of  title. 

“Sec.  9.  All  surplus  funds  accruing  from  the  operation  of  the 
system  of  rural  credits  herein  provided  for,  after  paying  interest  accru- 
ing on  the  aforesaid  bonds,  and  all  operating  and  other  expenses  aris- 
ing from  the  administration  of  said  system  of  rural  credits,  shall  be 
placed  in  the  state  treasury  and  become  a part  of  a fund  to  be  known 
as  the  ‘rural  credits  reserve  fund.’  Said  rural  credits  reserve  fund 
shall  be  loaned  on  farm  lands  in  the  manner  herein  provided  for  the 
rural  credits  loan  fund,  and  the  interest  accruing  from  loans  made 
from  said  rural  credits  reserve  fund  shall  be  added  to  it  and  become 
part  of  it.  The  said  rural  credits  reserve  fund  shall  be  irreducible  ex- 
cept that  it  may  be  drawn  upon  to  reimburse  the  state  for  loss  incurred 
in  the  administration  of  said  system  of  rural  credits. 

“Sec.  10.  The  legislative  assembly  shall  provide  in  such  detail  as 
it  shall  deem  advisable  for  the  carrying  out  and  administering  of  the 


1114 


provisions  of  this  amendment,  and  shall  provide  adequate  safeguards 
against  the  use  of  such  loans  as  an  aid  to  the  purchasing  and  holding 
of  lands  for  purposes  of  speculation.  Such  safeguards  shall  include 
clear  definitions  of  the  terms  ‘operate’  and  ‘occupy’  used  herein.  In  the 
absence  of  such  legislation,  and  subject  to  the  same  after  its  enact- 
ment, the  state  land  board  shall  proceed  to  administer  said  system  of 
rural  credits  under  rules  and  regulations  provided  by  itself,  but  subject 
to  the  provisions  herein  contained. 

“Sec.  11.  The  provisions  of  the  constitution  and  laws  of  Oregon 
in  conflict  with  this  amendment  are  hereby  repealed  insofar  only  as 
they  conflict  herewith.  The  provisions  of  this  amendment  shall  be  self- 
executing, and  shall  take  effect  and  be  in  operation  sixty  days  after 
their  approval  and  adoption  by  the  people  of  Oregon.” 

A number  of  states  that  have  no  specific  constitutional  provision 
for  rural  credit  systems,  have  authority  to  invest  state  funds  in  first 
mortgage  loans  on  farm  lands. 

The  constitution  of  Minnesota  as  amended  in  1916,  provides  that 
the  permanent  school  and  university  fund  of  the  state  may  be  invested 
in  “first  mortgage  loans  secured  upon  improved  and  cultivated  farm 
lands.”  (Art.  8,  Sec.  8.)  Such  loans  may  not  exceed  30  per  cent  of 
the  actual  cash  value  of  the  land  mortgaged.  No  legislation  to  carry 
out  this  provision  has  been  attempted. 

In  Arizona  a constitutional  provision  requiring  the  state  treasurer 
to  keep  certain  “moneys  invested  in  safe  interest-bearing  securities” 
(Art.  10,  Sec.  7)  has  likewise  left  the  way  open  for  loans,  and  in  1917 
the  Arizona  legislature  made  provision  for  the  investment  of  state 
funds  in  first  mortgages  on  farm  lands.  The  loans  are  made  under 
regulations  prescribed  by  the  governor,  secretary  of  state,  and  state 
treasurer,  and  the  amount  loaned  on  any  farm  may  not  exceed  one- 
half  of  the  actual  valuation. 

The  farm  loan  system  in  Oklahoma  is  closely  connected  with  the 
administration  of  state  and  school  lands.  Under  article  11,  section  6 
of  the  constitution,  provision  is  made  for  investing  permanent  common 
school  and  other  educational  funds  in  first  mortgages  upon  good  and 
improved  farm  lands.  Loans  are  limited  to  50  per  cent  of  the  reason- 
able value  of  the  lands  without  improvements.  In  1919  the  legislature 
made  provision  for  county  loan  boards,  and  further  prescribed  the 
conditions  upon  which  loans  could  be  authorized  on  first  mortgage 
security,  and  also  the  manner  of  procuring  second  mortgages  from  the 
home  loan  fund. 

Legislation  enacted  in  Montana  in  1915,  Chap.  28  and  in  1917, 
Chap.  124  (amended  in  1919,  chap.  174)  makes  provision  for  farm 
loans  on  improved  farm  land,  from  moneys  belonging  to  the  state 
permanent  common  school  funds  and  all  other  permanent  state, 
educational,  charitable,  and  penal  institution  funds. 

Applications  for  loans  on  farm  lands  from  the  state  funds  must 
be  made  to  the  secretary  of  the  state  board  of  land  commissioners, 
on  forms  approved  by  the  attorney-general,  and  it  is  the  duty  of  the 
of  the  board  of  land  commissioners  to  fill  such  applications  as  rapidly 


1115 


as  such  funds  are  available  and  in  the  order  in  which  approved  ab- 
stracts of  title  are  received.  Loans  are  to  be  secured  by  first  mort- 
gage, and  the  amount  of  each  loan  is  not  to  exceed  two-fifths  of  the 
actual  cash  value  of  the  land.  All  mortgages  given  to  secure  loans 
of  funds  on  farm  lands  must  be  made  in  the  name  of  the  state  as 
mortgagee.  The  interest  rate  is  six  per  cent  per  annum  payable  an- 
nually to  the  register  of  state  lands.  The  mortgages  run  for  periods 
of  not  less  than  three  nor  more  than  ten  years.  In  the  case  of  mort- 
gages running  for  ten  years  the  privilege  of  prepayment  is  given  after 
three  annual  interest  payments  have  been  made.  Examinations  and 
appraisals  are  made  under  the  direction  of  the  board  of  land  com- 
missioners. Expenses  incurred  in  making  examinations  and  ap- 
praising the  land  are  paid  out  of  the  several  income  funds  from  which 
the  loans  are  made,  but  the  expenses  of  perfecting  title  are  borne  by 
the  applicant  for  the  loan. 

The  state  land  board  may  sell  mortgage  farm  loans  at  public 
auction  whenever  there  are  applications  on  file  for  loans  in  excess  of 
the  amount  of  funds  on  hand  for  investment.  None  of  the  mortgages, 
nor  the  notes  or  obligations  secured  thereby  may  be  sold  for  a less 
amount  than  the  unpaid  principal  and  interest  accruing  up  to  the 
date  of  sale.  The  state  of  Montana  may  never  be  held  liable  for  the 
payment  of  any  portion  of  the  principal  or  interest  of  any  mortgages, 
notes,  or  obligations,  so  sold,  but  the  purchasers  must  look  to  the 
property  on  which  the  mortgages  are  given  and  to  the  makers  thereof 
for  the  payment  of  the  principal  and  interest.  Whenever  any  mortgages 
on  farm  lands,  together  with  the  notes  or  obligations  secured  thereby, 
are  sold  and  assigned  by  the  state  board  of  land  commissioners,  the 
purchaser  may,  in  writing,  appoint  the  registrar  of  state  lands  as  an 
agent,  to  whom  the  payment  of  the  principal  and  the  interest  be- 
coming due  thereon  may  be  paid,  and  it  then  becomes  the  duty  of  the 
register  to  receive  payment  of  such  principal  and  interest  and  pay  the 
same  over  to  the  holders  or  owners  of  such  mortgages,  notes  and  obli- 
gations. All  moneys  received  from  the  sale  of  mortgages  and  notes, 
must  be  deposited  in  the  state  treasury  and  credited  to  the  particular 
fund  or  funds  from  which  the  investments  and  loans  were  originally 
made,  and  may  then  in  like  manner  be  reinvested. 

A system  of  farm  loans  was  developed  in  Maine  under  chapter 
303,  laws  of  1917  as  amended  by  chapters  141  and  223  laws  of  1919. 
Under  this  legislation  farm  loan  commissioners  are  authorized  to 
make  investments  in  approved  first  mortgages  on  agricultural  lands, 
from  funds  accruing  from  the  sale  or  lease  of  public  lands  of  the 
state.  Under  the  soldier  settlement  law  enacted  in  Maine  in  1919 
(chap.  T89)  the  “reserve  land  fund”  is  made  available  for  carry- 
ing out  the  provisions  for  soldier  settlement  on  lands  of  the  state, 
and  further  provision  is  made  that  surplus  lands  may  be  opened  to 
other  settlers  when  not  required  for  homes  for  soldiers. 

Most  of  the  soldier  settlement  laws  recently  enacted  make  similar 
provisions  for  the  settlement  of  surplus  lands  by  others  than  soldiers, 
and  likewise  extend  their  other  benefits  to  citizens  generally  when  such 
benefits  are  available  in  excess  of  demands  for  soldiers.  As  these  laws 


1116 


quite  generally  loan  the  credit  of  the  state  to  prospective  soldier  settlers 
and  others  in  the  purchase  of  homes  and  farms,  it  will  readily  be  seen 
that  this  type  of  land  settlement  legislation  greatly  extends  the  entire 
field  of  rural  credit  in  the  acquisition  of  farms  by  means  of  loans  and 
advances  made  through  various  state  agencies.  Legislation  enacted 
in  1919,  that  is  typical  of  this  general  movement  may  be  found  in 
Arizona,  California,  Colorado,  Maine,  Missouri,  New  Mexico,  Oregon, 
South  Dakota,  Tennessee,  Utah,  Washington,  and  Wyoming.  This 
legislation  assumes  such  a variety  of  forms  that  about  the  only  com- 
mon ground  found  for  all  these  widely  varying  laws  is  the  common 
purpose  of  extending  the  aid  of  the  state  in  the  various  plans  for  the 
settlement  of  soldiers  and  of  others  when  surplus  means  are  available. 
In  some  of  the  states  the  1919  legislation  is  amendatory  of  former 
laws  making  provision  for  land  settlement;  in  such  cases  the  new 
legislation  generally  gives  soldiers  the  preference  in  settlement  plans 
and  extends  the  aid  of  the  state  in  more  substantial  forms  of  credit 
than  were  previously  available. 

A proposed  amendment  to  the  Kansas  constitution  relating  to 
state  aid  in  the  purchase  of  farm  homes  will  be  submitted  to  the  people 
of  that  state  at  the  general  election  in  1920.  (Kansas  Laws  1919,  p. 
448.)  The  proposed  amendment  reads:  “Art.  15,  Sec.  11.  To  en- 

courage the  purchase,  improvements  and  ownership  of  agricultural 
lands  and  the  occupancy  and  cultivation  thereof,  provision  may  be 
made  by  law  for  the  creation  and  maintenance  of  a fund,  in  such  man- 
ner and  amount  as  the  legislature  may  determine,  to  be  used  in  the  pur- 
chase, improvement  and  sale  of  lands  for  agricultural  purposes.  The 
legislature  may  provide  reasonable  preferences  for  those  persons  who 
served  in  the  army  and  navy  of  the  United  States  in  the  World  War 
and  holding  an  honorable  discharge  therefrom.” 

In  a number  of  the  western  states,  the  state  constitution  imposes 
but  few  restrictions  on  the  business  activities  of  the  state  government; 
and  frequently  wide  authority  is  granted  to  local  governments  to  en- 
gage in  business  enterprises.  This  condition  of  the  fundamental  law 
leaves  a wide  range  for  experimentation,  and  the  state  governments  in 
a number  of  cases  have  developed  rural  credit  systems,  without  the 
necessity  of  having  the  constitution  rewritten  in  order  to  free  them- 
selves of  a particular  limitation.  The  absence  of  constitutional  restric- 
tions may  also  explain  the  greater  number  of  farm  loan  systems  and 
cooperative  credit  associations  in  the  western  half  of  the  country. 
Where  economic  necessity  and  political  desire  unite  in  demanding  a 
law,  it  is  more  readily  obtainable  if  the  constitution  does,  not  embody 
some  particularized  limitation  which  becomes  obstructive  in  the  course 
of  the  progress  of  the  state. 


Foreign  systems.  The  main  features  of  rural  credit  systems 
of  different  foreign  countries  were  investigated  by  the  commission  sent 
abroad  by  the  government  of  the  United  States  to  study  and  report 
upon  rural  credit  legislation  in  1913.  The  vast  fund  of  valuable  in- 


1117 


formation  collected  by  this  commission  became  the  basis  of  the  federal 
farm  loan  act.1 

The  federal  act  therefore  reflects  the  farm  loan  experience  of  the 
civilized  countries  of  the  world,  as  the  substance  of  the  foreign  law 
was  digested  and  the  portions  deemed  most  practicable  and  applicable 
to  conditions  in  this  country  were  formulated  into  the  present  federal 
farm  loan  system. 


1 U.  S.  Senate  Documents  Nos.  214,  261,  and  380,  Sixty-third  Congress. 


1118 


V.  SYSTEMS  BASED  ON  SECOND  MORTGAGES. 


A system  based  on  second  mortgages  has  been  proposed  in  a num- 
ber of  states  in  order  to  supplement  the  first  mortgage  system  provided 
by  the  federal  farm  loan  act.  The  objections  most  frequently  urged 
against  the  federal  farm  loan  system  are  that  it  makes  no  provisions 
for  second  mortgages  and  that  the  rate  of  50  per  cent  loaned  on  the 
land  and  20  per  cent  loaned  on  the  improvements  is  inadequate  to  meet 
the  needs  of  many  farmers.  It  is  further  urged  that  where  land  values 
are  high  and  are  settled,  amounts  larger  than  $10,000  could  safely  be 
loaned,  without  undue  risk  to  any  interest  involved.  It  has  accordingly 
been  urged  that  state  systems  should  be  limited  to  second  mortgages  so 
as  to  supplement  the  federal  farm  loan  system,  instead  of  merely 
duplicating  its  work. 

The  federal  system  has  been  developed  on  the  theory  that  the 
farm  loan -bonds  must  have  so  safe  a basis  of  security  back  of  them 
that  there  can  be  no  question  as  to  their  value  or  stability,  and  so  be 
readily  sold  throughout  the  country.  On  the  other  hand,  bonds  issued 
on  second  mortgages  on  lands  within  the  limits  of  any  one  State  would 
have  adequate  security  where  land  values  are  high  and  conditions 
settled,  as  they  are  found  in  the  rich  farming  lands  of  Illinois. 

A bill  which  was  considered  by  the  Minnesota  legislature  in  1919, 
but  was  not  enacted  into  law,  made  provisions  for  second  mortgage 
loans  on  Minnesota  farms.  The  bill  authorized  the  issuance  of  certifi- 
cates of  indebtedness  of  the  state  amounting  to  $1,000,000.  The  money 
so  raised  was  to  be  used  in  making  second  mortgage  loans  on  farms. 
The  total  percentage  of  loans  by  first  and  second  mortgages  combined 
was  limited  to  75  per  cent  of  the  value  of  the  land  and  30  per  cent  of 
the  value  of  the  permanent  improvements. 

A number  of  agricultural  experts  have  pointed  out  that  the  up- 
ward limit  for  mortgage  loans  to  any  one  person  could  readily  be 
raised  from  $10,000  to  $20,000  through  the  addition  of  state  second- 
mortgage  loans,  to  the  amount  set  for  federal  first  mortgage  loans ; and 
that  a limit  thus  increased  would  be  advantageous  in  states  where  land 
values  are  as  high  and  as  stable  as  they  are  in  Illinois.-  Advocates  of 
this  plan  have  further  estimated  that  the  percentage  of  the  loan  could 
in  this  manner  be  increased  from  50  per  cent  of  the  value  of  the  land 
to  60  or  even  80  per  cent.  While  it  is  admitted  that  second  mortgage 
land  bonds  could  not  be  as  readily  sold  throughout  the  entire  country 
as  are  the  federal  first  mortgage  bonds,  the  proponents  of  this  plan 
urge  that  second  mortgage  bonds  on  Illinois  farms  would  find  a ready 
sale  wherever  the  high  productive  value  of  Illinois  land  is  known. 


1119 


VI.  SYSTEMS  FOR  SHORT-TIME  CREDITS. 


In  addition  to  the  long  time  loans  secured  by  mortgages  on  lands 
and  improvements,  the  farmer  is  often  in  need  of  short-time  credits  to 
supply  him  with  working  capital  or  to  provide  for  unforseen  emer- 
gencies in  the  operation  of  his  business.  The  personal  credit  unions 
which  have  operated  in  New  Zealand  and  in  Denmark  have  particularly 
aided  in  developing  the  agricultural  resources  of  those  countries.  A 
system  of  short-time  credits  which  would  utilize  the  personal  credit 
of  farmers  would  be  an  undoubted  aid  in  a community  lacking  a 
sufficient  number  of  local  banks  to  look  after  such  local  needs. 

In  Illinois  the  local  banks  throughout  the  state  seem  to  be  meeting 
the  problem  of  short-time  credits  for  agriculture  in  an  adequate  man- 
ner, and  accordingly,  the  need  for  such  personal  credit  unions  does  not 
seem  to  be  as  pressing  as  it  is  in  certain  communities  not  so  adequately 
served. 

A considerable  number  of  private  cooperative  credit  associations 
have  been  organized  in  the  United  States,  but  they  have  experienced 
difficulty  in  winning  the  confidence  of  borrowers  or  investors  where 
they  have  been  operated  without  any  form  of  state  supervision.  At 
the  present  time  the  short  time  credits  supplied  by  local  banks  through- 
out the  state  seem  to  be  meeting  the  needs  of  farmers  in  this  direction. 

Cooperative  credit  associations  under  state  supervision  have  played 
an  important  role  in  the  Australian  commonwealth.  Within  recent 
years  a number  of  states  in  this  country  have  made  provision  for  such 
associations.  A law  enacted  in  Nebraska  in  1919  (ch.  198)  is  typical 
of  legislation  of  this  sort : the  associations  are  placed  under  the  super- 
vision of  the  State  Banking  Board  and  are  empowered  to  make  loans 
to  members.  In  order  further  to  safeguard  their  funds,  they  are  em- 
powered to  invest  such  funds  as  may  not  be  required  for  loans  to  mem- 
bers or  for  immediate  use,  in  bonds  of  federal,  state,  local  and  munic- 
ipal governments,  in  bonds  issued  under  the  federal  farm  loan  act,  or 
in  other  securities  approved  by  the  State  Banking  Board. 


1120 


VII.  CONCLUSIONS. 


The  problems  before  the  constitutional  convention  with  re- 
spect to  this  matter  will,  of  course  be  as  to  whether  the  consti- 
tution shall  be  so  changed  as  to  authorize  a state  system  of  rural 
credits,  and  also  as  to  whether  anything  shall  be  done  to  permit  further 
action  with  respect  to  farm  tenancy.  By  Article  XI,  Section  5 of  the 
constitution,  the  state  is  now  expressly  prohibited  from  engaging  in  the 
banking  business  in  any  manner;  and  by  Article  IV,  Section  20,  it  is 
forbidden  to  loan  its -credit  to  any  corporation,  association  or  indiv- 
idual. The  problem  of  farm  loans,  therefore,  is  necessarily  a consti- 
tutional problem,  and  if  the  state  is  to  be  authorized  to  undertake  such 
loans,  these  constitutional  provisions  must  be  changed.  The  present 
language  of  the  constitution  with  respect  to  taxation  also  clearly  pro- 
hibits the  imposition  of  graduated  taxes  on  large  land  holdings. 

If  these  matters  are  to  be  dealt  with,  some  constitutional  change 
is  therefore  necessary,  and  this  constitutional  change  may  be  ac- 
complished either  by  omitting  present  restrictions,  or  by  placing  de- 
tailed provisions  in  the  constitution  with  respect  to  the  matters  sought 
to  be  accomplished:  It  is  hardly  likely  that  all  provisions  with  respect 

to  banking  and  with  respect  to  taxation  will  be  omitted  from  the  consti- 
tution. The  authorization  of  new  activities  here  dealt  with  may  be  ac- 
complished merely  by  rephrasing  the  present  constitutional  provisions. 
The  problems  of  farm  tenancy  and  farm  loans  are  relatively  new  in 
this  country  and  it  is  highly  unwise  to  embody  into  a constitution  de- 
tailed provisions,  which  may  soon  need  change  in  order  to  meet  chang- 
ing needs.  The  Oregon  constitutional  amendment  quoted  in  full  earlier 
in  this  bulletin  indicates  the  type  of  constitutional  provisions  that 
should  be  avoided. 


1121 


APPENDIX— REFERENCES. 


Carver,  T.  N.  Economic  Significance  of  Changes  in  the  Rural  Pop- 
ulation. Annals  of  the  American  Academy  of  Political  and  Social 
Science,  Philadelphia,  XL,  21-25,  March,  1912. 

Coulter,  J.  L.  Changes  in  Land  Values,  Farms,  Tenants  and  Owners 
since  1900.  American  Statistical  Association  Publications,  Boston. 
XII,  472-475,  March,  1911. 

Fairlie,  John  A.  Needed  Tax  Reforms  in  Illinois.  Proceedings  of  the 
National  Tax  Association,  1913. 

Haig,  Robert  M.  A History  of  the  General  Property  Tax  in  Illinois. 
University  of  Illinois  Studies  in  the  Social  Sciences,  Vol.  Ill,  Nos. 
1 and  2.  (March-June,  1914.)  _ 

Hibbard,  B.  H.  Tenancy  in  the  North  Central  States.  Quarterly 
Journal  of  Economics,  Harvard  University.  XXV,  710-730,  Aug- 
ust, 1911. 

Hibbard,  B.  H.  The  Decline  in  Rural  Population.  American  Stat- 
istical Association  Publications,  Boston.  XIII,  Whole  No.  129, 
85-95,  March,  1912. 

Holmes,  George  K.  The  Sources  of  Rural  Credit  and  the  Extent  of 
Rural  Indebtedness.  Bulletin  of  Social  and  Economic  Intelligence, 
International  Institute  of  Agriculture,  Rome,  April  and  May,  1913. 

Illinois.  Agriculture,  Annual  Reports  and  Year  Books  of  the  Depart- 
ment of,  (Between  1862  and  1888  the  agricultural  reports  were 
printed  as  reports  of  the  Commissioner  of  Agriculture ; since  1889, 
as  reports  of  the  Secretary  of  Agriculture.  The  Year  Books  have 
been  issued  since  1894.) 

Kinley,  David.  The  Movement  of  Population  from  the  Country  to 
the  City.  Cyclopedia  of  American  Agriculture,  New  York  and 
London,  1909,  IV,  113-119. 

Morman,  James  B.  The  Principles  of  Rural  Credits.  Rural  Science 
Series,  edited  by  L.  H.  Bailey,  New  York,  1919. 

Stewart,  C.  L.  An  Analysis  of  Rural  Banking  Conditions  in  Illinois, 
Chicago,  Illinois  Bankers  Association,  1914. 

Stewart,  C.  L.  Land  Tenure  in  the  United  States  with  Special  Ref- 
erence to  Illinois.  University  of  Illinois  Studies  in  the  Social 
Sciences.  Vol.  V,  No.  3,  September,  1916. 

Taylor,  H.  C.  Landownership  and  Tenancy.  Cyclopedia  of  American 
Agriculture,  New  York  and  London,  1909,  IV,  174-185. 


1122 


United  States.  Census  Reports,  United  States  Census  Bureau,  Volume 

on  Agriculture,  1880,  1890,  1900  and  1910 ; Farms  and  Homes,  1890 ; 

and  bulletins  of  the  Thirteenth  Census  on  Agriculture.  Washington, 

Government  Printing  Office. 

United  States,  Treasury  Department,  Federal  Farm  Loan  Bureau; 

Circular  No.  1.  National  Farm  Loan  Associations;  Organization, 
Management,  Powers,  and  Limitations.  Issued  by  the  Federal 
Farm  Loan  Board,  March  20,  1917.  Washington,  1917. 

Circular  No.  2.  How  Farmers  May  Form  a National  Farm  Loan 
Association.  Issued  by  the  Federal  Farm  Loan  Board,  August, 
1919.  Washington,  1919. 

Circular  No.  3.  (Revised)  The  Improved  Farm  Mortgage.  A 
story  illustrating  the  practical  application  of  the  Federal  Farm 
Loan  Act.  Issued  by  the  Federal  Farm  Loan  Board,  January  2, 
1919,  Washington,  1919. 

Circular  No.  4.  (Revised)  The  Federal  Farm  Loan  Act,  with 
Amendment  approved  January  18,  1918.  Issued  by  the  Fed- 
eral Farm  Loan  Board,  August,  1919,  Washington,  1919. 

Circular  No.  5.  The  Farm  Loan  Primer.  With  definitions,  rulings, 
and  regulations  of  the  Federal  Farm  Loan  Board  to  June  1,  1917. 
Here  you  will  find  in  brief  form  answers  to  the  questions  most 
frequently  asked  about  the  Federal  Farm  Loan  Act.  Issued  by 
the  Federal  Farm  Loan  Board.  Fifth  edition:  July  23,  1918. 
Washington,  1918. 

Circular  No.  7.  (Revised)  Killing  off  Mortgages.  A description 
of  the  methods  of  amortization  and  their  benefits  to  borrowers. 
Issued  by  the  Federal  Farm  Loan  Board.  July,  1919.  Wash- 
ington, 1919. 

Circular  No.  10.  Rulings  and  Regulations  of  the  Federal  Farm 
Loan  Board  to  June  30,  1919.  In  Matters  Pertaining  to  the  Fed- 
eral Farm  Loan  Act.  Issued  by  the  Federal  Farm  Loan  Bank. 
July,  1919.  Washington,  1919. 

Warren,  G.  F.  Crop  Yields  and  Prices,  and  our  Future  Food  Supply. 

Cornell  University  Agricultural  Experiment  Station.  January,  1914. 


CONSTITUTIOAN  L CONVENTION 


BULLETIN  No.  14 


Social  and  Economic  Problems 


Compiled  and  Published  by  the 

LEGISLATIVE  REFERENCE  BUREAU 

Springfield,  Illinois 


[Printed  by  authority  of  the  State  of  Illinois.] 


LEGISLATIVE  REFERENCE  BUREAU. 


Governor  Frank  O.  Lowden,  Chairman. 
Senator  Edward  C.  Curtis,  Grant  Park. 
Senator  Richard  J.  Barr,  Joliet. 
Representative  Edward  J.  Smejkal,  Chicago. 
Representative  William  P.  Holaday,  Danville. 


E.  J.  Verlie,  Secretary. 

W.  F.  Dodd,  in  charge  collection  of  data  for 
constitutional  convention. 


TABLE  OF  CONTENTS. 


PAGE. 

I.  Summary 1129 

II.  Extent  to  which  social  and  industrial  legislation  is 

PREVENTED  BY  THE  PRESENT  CONSTITUTION 1130 

III.  Housing  and  ownership  of  homes 1138 

Demonstration  or  experimental  work  in  providing  low 

cost  homes 1138 

Government  aid  to  home  owning  in  foreign  countries.  .1139 

State  loans  for  purchase  of  homes 1140 

Legislation  in  force  in  Australian  states 1141 

Government  guaranty  of  bonds  of  building  companies.  .1142 
Farm  loans  and  housing  in  cities 1143 

IV.  Social  insurance 1144 

Compulsory  health  insurance 1144 

Unemployment  insurance 1145 

Old  age  pensions 1145 

Constitutional  problems  in  connection  with  social  insur- 
ance  1146 

V.  Soldiers'  bonuses  and  preferences 1147 

Preference  in  public  employment 1148 

Admission  to  professions 1149 

Exemptions  from  certain  taxes  and  fees 1149 

Land  settlement  plans  for  soldiers 1149 

Vocational  rehabilitation 1151 

Committees  and  boards  for  welfare  of  soldiers 1152 

Conclusions 1153 

VI.  Injunctions  in  labor  cases 1155 

Outline  of  Illinois  statute 1155 

Operation  of  injunction  procedure 1155 

Conditions  under  which  injunctions  will  be  issued  in 

labor  cases , 1157 

Arguments  for  and  against  the  restriction  of  injunctions 
in  labor  cases 1161 


CONTENTS— Concluded. 


VI.  Analysis  of  Results — Concluded. 

Proposed  legislation  in  Illinois  and  legislation  in  other 

states 1163 

United  States  legislation 1164 

Constitutionality  of  proposed  legislation 1168 

Giving  a preferred  status  to  labor 1169 

Limitation  of  the  use  of  injunctions 1172 

Punishment  of  contempts 1172 

Conclusions 1174 

VII.  Corporations,  railroads,  warehouses,  public  utilities, 

BANKING  AND  INSURANCE  CORPORATIONS..., 1176 

Corporations  1176 

Railroads 1177 

Warehouses 1177 

Public  utilities 1178 

Banks 1179 

Insurance 1179 

VIII.  Canals  and  internal  improvements 1180 

IX.  Illinois  central  railroad 1183 

Historical  account  of  the  Illinois  Central  provision. 1183 

Problems  of  collection 1184 

Amounts  received  from  the  Illinois  Central  Railroad.  . .1185 
Comparison  of  payments  of  Illinois  Central  to  the  state 

with  taxation  of  other  railroads  in  Illinois 1185 

Constitutionality  of  Illinois  Central  gross  receipts  tax.  .1187 


I.  SUMMARY. 


This  bulletin  discusses  the  distinctly  economic  provisions  of  the 
Constitution  of  1870,  and  also  the  various  proposals  likely  to  be  made 
to  the  Constitutional  Convention  with  respect  to  social  and  economic 
matters.  In  Bulletin  No.  4 upon  state  and  local  finance  will  be  found 
a discussion  of  state  and  municipal  debt  limits,  with  some  indica- 
tion of  the  relationship  of  such  limits  to  enterprises  which  it  may  be 
desired  to  have  the  state  or  municipal  corporations  undertake.  In  Bul- 
letin No.  7 upon  eminent  domain  and  excess  condemnation  will  be 
found  a full  discussion  of  certain  proposed  extensions  of  governmental 
power,  in  order  to  enable  the  government  to  do  certain  things  not  now 
permitted.  The  discussion  in  Bulletin  No.  7 deals  of  course  only  with 
the  extent  to  which  further  governmental  activities  may  be  accom- 
plished or  aided  through  the  power  of  eminent  domain.  In  Bulletin 
No.  8 on  the  legislative  department  will  be  found  a chapter  dealing 
with  the  subject  of  legislative  powers ; in  this  chapter  an  attempt  has 
been  made  to  indicate  the  reasons  why  numerous  matters  with  respect 
to  social  and  economic  legislation  have  been  placed  in  the  texts  of  state 
constitutions.  In  Bulletin  No.  10,  dealing  with  the  judicial  department, 
will  be  found  a chapter  devoted  to  the  power  of  the  courts  to  declare 
laws  unconstitutional.  This  power  bears  a close  relationship  to  the 
subjects  discussed  in  the  present  bulletin,  inasmuch  as  a number  of 
the  problems  which  are  here  discussed  will  present  themselves  to  the 
constitutional  convention  because  of  decisions  holding  legislation  in- 
valid under  the  constitution  of  1870. 

The  subject  of  farm  tenancy  and  rural  credits  has  been  deemed 
sufficiently  important  to  deserve  a separate  bulletin,  and  a full  treat- 
ment of  this  subject  will  be  found  in  Bulletin  No.  13  of  this  series. 
The  subject  of  housing  and  ownership  of  homes  discussed  in  this  bulle- 
tin bears  a close  relationship  to  the  subject  of  farm  tenancy  and  rural 
credits.  The  one  subject  looks  at  the  matter  from  the  standpoint  of 
the  farming  community,  and  the  other  from  the  standpoint  of  the  urban 
community. 


1130 


II.  EXTENT  TO  WHICH  SOCIAL  AND  INDUSTRIAL 
LEGISLATION  IS  PREVENTED  BY  THE  PRES- 
ENT CONSTITUTION.1 


In  every  large  industrial  state  of  this  country,  certain  types  of  leg- 
islation have  been  held  invalid  as  violating  broad  constitutional  guar- 
antees, such  as  that  with  respect  to  due  process  of  law.  The  Ohio  con- 
stitutional convention  of  1912  proposed  several  amendments  whose 
purpose  was  to  establish  a policy  in  the  state  different  from  that  an- 
nounced by  the  Ohio  supreme  court  before  1912.  Of  the  amendments 
adopted  by  the  people  of  Ohio  in  1912  the  following  four  at  least  were 
of  this  character:  (a)  A constitutional  provision  authorizing  the  leg- 

islature to  pass  mechanics  lien  laws,  (b)  An  amendment  authorizing 
legislation  “ fixing  and  regulating  the  hours  of  labor,  establishing  a 
minimum  wage,  and  providing  for  the  comfort,  health,  safety  and  gen- 
eral welfare  of  all  employes.”  (c)  A constitutional  provision  ex- 
pressly authorizing  compulsory  workmen’s  compensation  legislation, 
(d)  An  express  provision  that  except  in  cases  of  extraordinary  emer- 
gency a day’s  labor  on  public  works  carried  on  or  aided  by  the  state  or 
by  any  political  subdivision  thereof  should  not  exceed  eight  hours  a day 
or  forty-eight  hours  a week. 

Prior  to  1912  judicial  decisions  in  Ohio  had  held  invalid  regula- 
tions with  respect  to  mechanics  liens  and  also  with  respect  to  the  limi- 
tation of  hours  of  labor  upon  public  works.  There  hacl  also  been  a ju- 
dicial decision  holding  it  improper  for  the  legislature  to  require  the 
screening  of  coal  in  connection  with  the  payment  of  wages  to  miners. 
The  other  provisions  above  referred  to  were  inserted  into  the  Ohio  con- 
stitution in  1912,  because  it  was  feared  that  the  court  might  hold  cer- 
tain types  of  legislation  unconstitutional,  unless  such  legislation  were 
explicitly  authorized  by  the  constitution. 

The  present  constitution  of  Illinois  does  not  contain  a great  many 
provisions  similar  to  those  just  referred  to  as  having  been  inserted 
into  the  constitution  of  Ohio  in  1912.  However  Article  4,  section  29, 
is  similar  in  character.  This  section  reads  “It  shall  be  the  duty  of  the 
General  Assembly  to  pass  such  laws  as  may  be  necessary  for  the  pro- 
tection of  operative  miners  by  providing  for  ventilation,  when  same 
may  be  required,  and  the  construction  of  escapement  shafts,  or  such 
other  appliances  as  may  secure  safety  in  all  coal  mines,  and  to  provide 
for  the  enforcement  of  said  laws  by  such  penalties  and  punishments 
as  may  be  deemed  proper.”  This  constitutional  provision  seems  from 

1 Upon  the  whole  matter  discussed  in  this  chapter  material  of  interest  will 
be  found  in  the  Massachusetts  Constitutional  Convention  Bulletin  No.  18,  The 
Constitutionality  of  Social  Welfare  Legislation. 


1131 


certain  decisions  of  the  court  to  vest  in  the  General  Assembly  a wider 
power  as  to  legislation  for  the  safety  of  miners  than  with  respect  to 
other  types  of  labor  legislation.2 

By  amendment  in  1886  a provision  was  added  to  the  constitution 
that : “Hereafter  it  shall  be  unlawful  for  the  commissioner  of  any  pen- 
itentiary, or  other  reformatory  institution  in  the  State  of  Illinois  to  let 
by  contract  to  any  person,  or  persons,  or  corporations,  the  labor  of  any 
convict  confined  within  the  said  institution.” 

Certain  types  of  legislation  are  clearly  valid  under  the  present  con- 
stitution, and  as  to  them  no  constitutional  authorization  is  necessary. 
On  the  other  hand,  if  it  is  already  recognized  that  a certain  type  of  leg- 
islation may  be  validly  enacted,  placing  a provision  in  the  constitution 
regarding  it  is  likely  to  operate  as  a limitation  upon  legislative  power 
with  respect  to  that  type  of  legislation.  State  Constitutional  provisions 
are  normally  construed  as  limitations  upon  legislative  power,  and  if  a 
provision  is  placed  in  the  constitution  which  was  unnecessary  as  a 
means  of  granting  legislative  power,  that  provision  will  be  interpreted 
as  limiting  the  power  of  the  legislature.  An  important  example  of  this 
will  be  found  in  Nebrafka.  The  framers  of  the  Nebraska  Constitution 
of  1875  placed  in  that  instrument  an  authorization  for  the  establish- 
ment of  reform  schools  for  children  under  the  age  of  sixteen  years. 
The  legislature  later  desired  to  extend  the  age  of  children  who  might 
be  committed  to  a reform  school,  but  this  was  held  improper,  the  court 
saying  that  the  legislature  would  have  had  full  power  with  respect  to 
reform  schools  in  the  absence  of  constitutional  provision,  but  that  the 
constitutional  provision  must  have  intended  to  limit  the  legislative 
power  as  to  the  type  of  reform  school  that  might  be  established. 

It  may  be  worth  while  to  review  briefly  the  types  of  legislation 
whose  validity  has  been,  or  is  likely  to  be,  sustained : 

(a)  It  is  clearly  proper  under  the  present  constitution  for  the 
General  Assembly  to  enact  legislation  regarding  the  hours  of  labor  of 
women.  This  principle  has  been  fully  established  by  the  case  of 
Ritchie  v.  Wayman,  244  111.  509  (1910),  and  People  v.  Elderding,  254 
III.  559-579  (1912.)  It  is  true  of  course  that  in  the  earlier  case  of 
Ritchie  v.  People.  155  Illinois  198  (1895)  the  Supreme  Court  of  Illi- 
nois held  unconstitutional  an  eight-hour  labor  law  for  women.  How- 
ever, in  the  later  case  the  Supreme  Court  substantially  departed  from 
its  attitude  in  the  first  Ritchie  case,  although  it  should  be  understood 
that  the  first  Ritchie  case  arose  under  an  eight-hour  labor  law  for 
women,  whereas  the  second  case  arose  under  a ten-hour  law.  No  leg- 
islation has  been  enacted  in  Illinois  which  reduces  the  labor  of  women 
below  ten  hours  a day.  Yet,  in  view  of  the  case  of  Miller  v.  Wilson, 
236  U.  S.  373  (1915)  it  may  be  suggested  that  eight-hour  labor  legis- 
lation for  women  would  probably  be  upheld  by  the  Illinois  Supreme 
Court.  In  this  matter  the  court  would  probably  follow  the  ruling  of 
the  United  States  Supreme  Court. 

(b)  Hours  and  conditions  of  labor  of  children.  The  prohibition 
of  child  labor  and  the  strict  regulation  of  hours  and  conditions  of 


2 Starne  v.  People,  222  111.  189  (1906). 


1132 


labor  of  children  are  matters  as  to  which  legislation  is  now  pretty 
clearly  constitutional.  Legislative  power  with  respect  to  children  is 
much  greater  than  with  respect  to  adult  males  or  adult  females,  and 
there  was  a clear  pronouncement  in  favor  of  the  constitutionality  of 
legislation  for  children  in  a recent  case  which  went  to  the  United 
States  Supreme  Court  from  the  state  of  Illinois  (Sturgis  v.  Beauchamp, 
231  U.  S.  320.) 

(c)  Workmen’s  Compensation.  Ten  years  ago  there  was  serious 
doubt  as  to  the  constitutionality  of  compulsory  workmen’s  compensation 
laws,  and  the  New  York  Court  of  Appeals  in  the  case  of  Ives  v.  South 
Buffalo  Railroad  Company  (201  N.  Y.  271)  expressly  held  such  leg- 
islation unconstitutional.  An  amendment  to  the  constitution  of  New 
York  was  adopted  permitting  workmen’s  compensation  legislation  in 
that  state,  and  similar  amendments  have  been  adopted  in  a number  of 
other  states.  However,  such  constitutional  provisions  seem  now  un- 
necessary in  view  of  the  fact  that  compulsory  workmen’s  compensa- 
tion legislation  has  been  upheld  by  the  United  States  Supreme  Court  in 
the  recent  case  of  New  York  Central  Railroad  Co.  v.  White,  243  U.  S. 
188  (1917).  Since  1917  compulsory  workmer^s  compensation  legisla- 
tion for  hazardous  employments  has  been  in  force  in  Illinois,  and  this 
legislation  has  not  been  contested  in  the  courts. 

(d)  Safety  appliances  legislation.  Illinois  has  had  for  a number 
of  years  a large  amount  of  legislation  regarding  safety  in  factories  and 
in  mines.  Safety  legislation  for  mines  is  expressly  authorized  by  the 
constitution  of  1870,  but  safety  legislation  with  respect  to  factories  and 
other  industrial  establishments  is  sustained  generally  in  this  and  other 
states  under  the  police  power,  independently  of  any  express  authoriza- 
tion. With  respect  to  safety  legislation  there  is  probably  no  need  what- 
ever of  constitutional  authorization.  It  is  true  that  some  cases  in  this 
state  imply  a doubt  as  to  the  validity  of  such  legislation,  but  the  doubt 
when  expressed  by  the  court  has  been  based  not  upon  the  character  of 
the  legislation  as  a whole  but  upon  some  element  of  improper  classify 
cation.  Legislation  for  the  prevention  of  occupational  diseases  is  also 
clearly  within  the  police  power,  and  such  a case  as  People  v.  Schenck, 
257  111.  384  (1913)  is  based  not  upon  the  invalidity  of  such  legislation 
in  general,  but  upon  a classification  which  was  claimed  to  be  improper. 
In  that  case  the  Supreme  Court  took  the  view  that  it  was  improper  to 
prohibit  the  use  of  emery  wheels  or  emery  belts  in  any  basement. 

(e)  The  contracting  for  the  use  of  convict  labor  is  now  prohibited 
by  the  constitutional  amendment  of  1886,  and  this  matter  is  therefore 
perhaps  sufficiently  covered  by  express  constitutional  provisions.  How- 
ever some  effort  may  be  made  to  place  in  the  constitution  a further 
provision  prohibiting  the  placing  of  convict-made  goods  in  competi- 
tion in  any  manner  with  goods  manufactured  by  free  labor. 

(f)  There  may  be  some  doubt  as  to  the  validity  of  minimum  wage 
legislation,  if  such  legislation  were  enacted  in  the  state  of  Illinois.  In 
the  case  of  Stettler  v.  O’Hara,  (243  U.  S.  629)  the  United  States  Su- 
preme Court  by  an  equal  division  sustained  minimum  wage  legislation 
for  women  and  children.  The  court  was  equally  divided  in  this  case 
because  Mr.  Justice  Brandeis  had  been  the  counsel  supporting  the  va- 


1133 


lidity  of  the  law  before  he  became  a member  of  the  United  States  Su- 
preme Court.  It  is  therefore  fairly  clear  that  a majority  of  the  fed- 
eral Supreme  Court  are  in  favor  of  the  constitutionality  of  minimum 
wage  legislation  for  women  and  children.  The  fact  that  the  United 
States  Supreme  Court  may  sustain  the  validity  of  minimum  wage  leg- 
islation does  not  of  course  necessarily  mean  that  the  validity  of  such 
legislation  would  be  sustained  by  a state  supreme  court.  The  State 
Court  is  the  final  interpreter  of  the  broad  guarantees  contained  in  a 
State  Constitution,  and  may,  if  it  sees  fit,  hold  legislation  unconstitu- 
tional as  violative  of  due  process  of  law,  even  though  such  legislation 
has  been  held  not  violative  of  the  due  process  of  law  guarantee  of  the 
Federal  Constitution. 

Minimum  wage  legislation  for  men  would  be  of  doubtful  validity 
in  either  the  state  courts  or  the  United  States  Supreme  Court.  The 
case  of  Wilson  v.  New,  243  U.  S.,  332,  which  upheld  the  wage  provi- 
sions of  the  Adamson  Law,  was  clearly  based  upon  a specific  emer- 
gency and  it  would  probably  not  be  wise  to  reason  from  that  case  to 
any  general  view  in  favor  of  the  validity  of  minimum  wage  legislation 
for  men. 

The  discussion  above  has  related  to  legislation  which  is  either 
clearly  constitutional  or  which  would  probably  be  held  constitutional  by 
the  Supreme  Court  of  Illinois.  In  a number  of  cases,  legislation  upon 
other  matters  has  been  held  unconstitutional  by  the  Supreme  Court 
and  it  is  possible  to  say  that  certain  other  types  of  proposed  legislation 
not  yet  enacted  in  Illinois  would  be  held  invalid  if  they  were  enacted.  A 
brief  review  should  be  given  of  types  of  legislation  which  would  prob- 
ably be  held  invalid. 

• (1)  In  another  chapter  of  this  bulletin  will  be  found  a full  dis- 
cussion of  the  problem  of  injunctions  in  labor  cases,  and  of  the  legisla- 
tive power  to  limit  the  authority  of  courts  to  punish  for  contempt  in 
such  cases.  As  has  been  indicated,  legislation  with  respect  to  these 
matters  has  been  enacted  by  Congress  and  by  a number  of  state  leg- 
islatures. On  the  other  hand  legislation  of  this  character  has  been  held 
improper  in  California,  Massachusetts  and  New  Jersey,  and  the  judi- 
cial decisions  of  this  state  seem  to  lead  to  the  conclusion  that  such  leg- 
islation would  be  held  invalid  in  this  state  under  present  state  consti- 
tutional provisions. 

(2)  Legislation  regarding  the  payment  of  wages,  particularly  that 
requiring  the  payment  of  wages  in  cash  and  that  requiring  coal  to  be 
screened  in  the  payment  of  wages  to  miners,  has  been  held  unconsti- 
tutional in  this  state.  The  Supreme  Court  of  Illinois  has  been  pretty 
definitely  of  the  view  that  legislation  regulating  the  payment  of  wages 
in  this  manner  is  unconstitutional.  The  leading  cases  upon  this  matter 
are  cited  in  a note.3  Legislation  of  this  character  has  been  upheld  by 
the  U.  S.  Supreme  Court,  as  not  violative  of  due  process  of  law,  and 
there  has  been  some  tendency  for  courts  which  have  once  held  such 
legislation  invalid  to  change  their  view.  However  a large  mass  of 

3 Millet  v.  People,  117  111.  294  (1886);  Frorer  v.  People,  141  111.  171  (1892); 
Ramsey  v.  People,  142  111.  380  (1892);  Braceville  Coal  Co.  v.  People,  147  111.  66 
(1893);  Harding  v.  People,  160  111.  456  (1896);  Kellyville  Coal  Co.  v.  Harriet*,  207 

111.  624  (1904. 


1134 


possible  legislation  regarding  the  payment  of  wages  is  now  unconsti- 
tutional in  Illinois. 

A proposed  amendment  to  the  constitution  of  Illinois  was  sub- 
mitted to  the  people  in  1894.  This  proposal  read  as  follows:  “That 

the  general  assembly  shall  have  power  and  it  shall  be  its  duty  to  enact 
and  provide  for  the  enforcement  of  all  laws  that  it  shall  deem  neces- 
sary to  regulate  and  control  contracts,  conditions  and  relations  existing 
or  arising  from  time  to  time  between  corporations  and  their  em- 
ployes.” The  affirmative  vote  on  the  proposal  was  153,393,  and  the 
negative  vote  59,558,  but  the  amendment  failed  because  not  receiving 
a majority  of  the  votes  cast  at  the  election. 

(3)  Hours  of  labor  of  men.  In  the  case  of  Lochner  v.  New 
York  (198  U.  S.  45)  the  United  States  Supreme  Court  held  invalid  a 
law  which  limited  the  hours  of  labor  in  bakeries  to  ten  hours  a day. 
The  same  court  in  the  earlier  case  of  Holden  v.  Hardy  (198  U.  S.  366) 
held  a limitation  of  the  hours  of  men  in  mines  and  smelters  constitu- 
tional, on  the  ground  that  labor  in  mines  and  smelters  was  hazardous 
and  that  the  hours  might  be  limited  in  such  employments.  The  Lochner 
case  was  distinguished  from  Holden  v.  Hardy  on  the  ground  that  labor 
in  bakeries  was  not  hazardous  or  unhealthful.  In  the  case  of  Bunting 
v.  Oregon,  243  U.  S.  426  (1917)  the  United  States  Supreme  Court 
upheld  an  Oregon  law  which  definitely  limits  the  hours  of  labor  of 
men,  and  practically  departed  from  the  view  expressed  in  the  Lochner 
case.  The  Oregon  law  was  a general  ten  hour  law,  but  was  applied  to 
establishments  which  had  under  other  legislation  been  classed  as  haz- 
ardous, although  all  the  employments  to  which  it  was  related  were  not 
hazardous  in  the  strict  sense  of  the  word.  In  view  of  the  Bunting 
case,  it  is  probably  now  true  that  the  United  States  Supreme  Court 
would  uphold  legislation  restricting  the  hours  of  labor  of  men,  al- 
though such  legislation  might  be  of  doubtful  validity  if  the  hours  were 
limited  beyond  ten  hours  a day. 

It  has  now  come  to  be  generally  recognized  in  this  country  that  a 
state  legislature  may  limit  the  hours  of  labor  upon  public  works, 
whether  such  public  works  are  conducted  by  the  state  or  by  a political 
subdivision  of  the  state.  Such  legislation  was  upheld  by  the  United 
States  Supreme  Court  in  the  case  of  Atkin  v.  Kansas,  191  U.  S.  217 
(1903).  In  New  York,  California,  Ohio  and  other  states,  legislation 
limiting  the  hours  of  labor  of  men  upon  public  works  was  held  invalid 
by  state  courts,  and  such  decisions  have  lead  to  constitutional  pro- 
visions prescribing  an  eight-hour  day  upon  public  works  in  New  York, 
Ohio,  California,  Arizona,  Colorado,  Idaho,  Montana,  New  Mexico, 
Oklahoma,  Utah  and  Wyoming. 

No  legislation  has  been  expressly  enacted  in  Illinois  limiting  the 
hours  of  labor  upon  public  works,  but  decisions  of  the  Supreme  Court 
of  Illinois  upon  municipal  contracts  have  made  it  clear  that  an  Illinois 
court  would  regard  such  legislation  as  invalid.  In  the  case  of  Fisk  v. 
People,  188  111.  206  (1900),  the  Supreme  Court  took  the  view  that  the 
requirements  of  union  labor  and  of  an  eight-hour  day  in  municipal 
public  works  were  invalid,  and  the  attitude  of  the  court  pretty  clearly 
indicated  that  it  regarded  such  regulation  as  not  merely  beyond  the 


1135 


power  of  the  city  but  also  as  unconstitutional.  In  the  case  of  Mc- 
Chesney  v.  People  200  111.  146,  the  Supreme  Court  took  the  same  view 
as  to  contract  provisions  fixing  the  eight-hour  day  and  prohibiting  alien 
labor.  If  it  is  desired  to  permit  a statutory  fixing  of  the  hours  of  labor 
upon  state  and  municipal  public  works,  this  would  seem  to  require  a 
constitutional  change  in  this  state. 

(4)  Legislation  making  exceptions  in  favor  of  union  labor  with 
respect  to  matters  of  discharge  or  with  respect  to  employment  is  pretty 
clearly  not  permitted  by  the  constitution  of  Illinois  as  now  interpreted. 
In  the  case  of  Gillespie  v.  People,  188  111.  176  (1900),  the  Supreme 
Court  held  unconstitutional  legislation  which  sought  to  make  it  a 
criminal  offense  for  an  employer  to  attempt  to  prevent  his  employes 
from  joining  labor  unions,  or  to  discharge  them  because  of  their  con- 
nection with  labor  unions ; and  this  view  is  also  substantially  taken  by 
the  United  States  Supreme  Court  in  the  recent  case  of  Coppage  v. 
Kansas  (1915).  Legislation  of  this  character  would  probably  be  in- 
valid under  the  constitution  of  the  United  States  even  though  there 
were  a state  constitutional  provision  expressly  authorizing  it. 

In  the  case  of  Matthews  v.  People,  202  111.  389  (1903),  the  Su- 
preme Court  held  unconstitutional  a provision  of  the  Free  Employ- 
ment Agency  Act  which  prohibited  superintendents  of  agencies  from 
furnishing  workmen  or  lists  of  workmen  to  employers  whose  men 
were  either  on  a strike  or  locked  out,  the  court  taking  the  view  that 
this  created  an  unjust  and  unequal  classification. 

In  the  case  of  Fisk  v.  People,  188  111.  206  (1900)  the  court 
squarely  took  a view  against  the  validity  of  an  ordinance  discriminat- 
ing in  favor  of  union  labor  upon  local  public  works  and  said : “Under 
our  constitution  and  laws,  any  man  has  a right  to  employ  a workman 
to  perform  labor  for  him  whether  such  workman  belongs  to  a labor 
union  or  not,  and  any  workman  has  a right  to  contract  for  the  per- 
formance of  labor  irrespective  of  the  question  whether  he  belongs  to  a 
labor  union  or  not.”  The  case  of  the  City  of  Chicago  v.  Hulbert,  205 
111.  346  (1903)  should  also  be  cited  in  this  connection,  although  the 
matter  here  related  to  the  terms  of  an  Act  prohibiting  the  employment 
of  aliens  upon  public  works. 

(5)  In  the  case  of  Josma  v.  Western  Steel  Car  and  Foundry 
Co.  249  111.  508  (1911),  the  Supreme  Court  of  Illinois  held  invalid 
legislation  penalizing  the  employment  of  laborers  from  another  com- 
munity by  misrepresentation  as  to  the  conditions  of  employment  or  the 
existence  of  a strike,  saying  that  there  was  no  distinction  in  this  matter 
between  laborers  in  another  community  and  those  in  the  same  com- 
munity, and  that  the  classification  was  therefore  invalid.  A contrary 
view  was  taken  by  the  Supreme  Judicial  Court  of  Massachusetts  in 
the  case  of  the  Commonwealth  v.  Libbey,  216  Mass.  256  (1914).  If 
legislation  of  the  character  held  unconstitutional  is  desired  in  this 
state,  a constitutional  amendment  for  the  purpose  may  be  proposed, 
although  it  would  seem  possible  to  draft  a law  in  such  a way  as  to 
meet  the  objection  raised  by  the  court.  If,  as  is  contended  by  those 
favoring  such  legislation,  the  evil  aimed  at  exists  only  with  respect  to 
the  deceiving  of  laborers  in  another  community,  no  harm  would  result 


1136 


from  the  passage  of  legislation  applicable  to  such  deceit,  irrespective 
of  where  the  laborer  might  be. 

(6)  The  subjects  of  old  age  and  sickness  insurance  are  dis- 
cussed elsewhere  in  this  bulletin.  It  is  probable  that  constitutional 
provisions  would  be  necessary  to  permit  the  enactment  of  legislation 
upon  these  subjects. 

(7)  Legislative  power  under  the  present  constitution  is  pretty 
clearly  not  sufficient  to  authorize  the  State  or  its  political  subdivisions 
embarking  upon  the  construction  of  houses  or  upon  numerous  other 
types  of  governmental  enterprises.  A wide  expansion  of  authority 
with  respect  to  governmental  undertakings  has  taken  place  in  Arizona, 
Oklahoma,  North  and  South  Dakota,  and  a constitutional  amendment 
has  recently  been  adopted  in  Massachusetts  authorizing  the  state  in 
times  of  emergency  to  engage  in  the  furnishing  of  certain  necessaries. 
Municipal  debt  limitations  in  the  present  constitution  would  often- 
times prevent  the  engaging  in  industrial  enterprises,  even  if  constitu- 
tional provisions  were  construed  not  to  prohibit  such  enterprises ; but 
if  it  is  desired  to  have  the  state  or  its  political  subdivisions  embark 
upon  the  enterprises  here  under  discussion,  constitutional  changes  will 
probably  be  necessary. 

(8)  A constitutional  amendment  was  adopted  in  Massachusetts 
in  1918  authorizing  the  control  of  billboards  and  public  advertising. 
A similar  proposal  was  rejected  by  the  people  of  Ohio  in  1912.  These 
matters  are  commented  upon  in  Bulletin  No.  7,  upon  eminent  domain 
and  excess  condemnation.  A constitutional  change  may  be  necessary 
if  it  is  desired  to  regulate  this  matter  by  legislation  although  a recent 
decision  of  the  Supreme  Court  of  United  States  has  gone  far  towards 
sustaining  the  regulation  of  billboards,  and  this  case  went  to  the 
federal  Supreme  Court  from  the  state  of  Illinois.  (Cusack  v.  Chicago, 
242  U.  S.  526). 

(9)  Projects  for  the  conservation  of  natural  resources  are  now 
to  a large  extent  within  the  state  constitutional  authority.  Here  again 
the  problem  is  in  part  one  of  financing  such  projects,  and  this  matter 
may  require  constitutional  action  if  wider  state  and  municipal  powers 
are  desired. 

(10)  The  Court  of  Appeals  of  New  York  has  sustained  legisla- 
tion limiting  the  night  labor  of  women,  (People  v.  Schweinler  Press 
214  N.  Y.  395),  and  also  legislation  requiring  a weekly  day  of  rest  in 
certain  occupations.4 

The  labor  party  of  Illinois  desires  that  a new  constitution  “charge 
the  legislature  with  the  duty  of  providing  by  law  for  the  reorganization 
of  industries,  impressing  upon  industries  a co-operative  character  and 
providing  for  collective  bargaining  and  for  the  election  of  labor  mem- 
bers to  boards  of  directors.”  It  is  questionable  whether  under  the 
United  States  constitution  legislation  would  be  valid  which  interfered 
with  the  management  of  private  industry  and  required  the  election 
of  labor  members  to  boards  of  directors  of  corporations.  An  economic 
tendency  in  the  direction  of  greater  co-operation  between  employers 


4 People  v.  Klinck  Packing  Co.,  214  N.  Y.  121  (1915). 


1137 


and  employes  in  the  management  of  industries  is  becoming  apparent, 
and  it  may  be  that  the  courts  will  come  to  recognize  the  validity  of 
legislation  requiring  such  co-operation.  It  should  of  course  be  re- 
marked that  this  matter  has  not  been  passed  upon  by  the  federal  Su- 
preme Court,  and  that  future  action  in  this  field  might  be  sustained, 
if  taken.  With  respect  to  co-operative  enterprises  future  legislation 
in  Illinois  has  already  done  something  by  way  of  encouragement,  and 
in  the  chapter  of  this  bulletin  dealing  with  corporations  will  be  found 
a further  comment  upon  the  problem  of  co-operative  organizations. 

Certain  decisions  of  the  Supreme  Court  of  Illinois  have  been 
subjected  to  criticism,  but  do  not  prevent  legislation  in  the  field  to 
which  they  apply.  For  example  the  case  of  Starne  v.  People  222  111. 
189  (1906)  held  invalid  an  act  requiring  washrooms  in  mines,  but  the 
legislation  was  held  invalid  upon  the  ground  of  an  improper  classifica- 
tion and  later  legislation  upon  the  same  matter  has  been  upheld  by  the 
Supreme  Court  of  Illinois  (People  v.  Solomon,  265  111.  28,  1914). 
The  case  of  Massie  v.  Cessna,  239  111.  352  (1909)  held  unconstitutional 
an  act  regarding  the  assignments  of  wages  as  security  for  money 
loans,  but  did  not  prevent  legislation  in  this  field. 


1138 


III.  HOUSING  AND  OWNERSHIP  OF  HOMES. 


The  development  of  industry  in  recent  times  has  led  to  the  con- 
centration of  population  in  cities  with  resulting  overcrowding  of  dwel- 
lings and  insanitary  conditions,  which  frequently  endanger  the  health 
of  the  entire  community.  The  problem  of  securing  sanitary  homes 
for  workingmen  of  small  means  has  become  acute  in  some  of  our 
larger  cities.  Various  private  and  public  agencies  have  interested 
themselves  in  this  problem.  Thus  we  find  local,  state,  and  national 
housing  commissions,  societies  to  promote  the  erection  of  workmen’s 
dwellings,  city  and  town  planning  commissions,  and  various  organiza- 
tions and  commissions  dealing  with  housing  problems.  The  United 
States  government  found  it  necessary  to  embark  upon  large  projects 
for  the  construction  of  houses  to  meet  the  needs  of  communities  which 
increased  rapidly  in  population  because  of  war  manufactures. 

Constitutional  authority  now  seems  ample  for  the  regulation  of 
safety  and  sanitation  in  privately  constructed  houses  although  there 
may  be  some  question  as  to  the  validity  of  zoning  statutes  which  seek 
to  preserve  districts  for  purely  residential  purposes.  The  subject  of 
zoning  is  discussed  in  Bulletin  No.  7 on  eminent  domain  and  excess 
condemnation.  The  subject  discussed  in  this  chapter  is  that  of  direct 
governmental  aid  to  improve  housing  conditions,  through  the  con- 
struction of  houses  or  through  loans  to  individuals  seeking  to  acquire 
homes. 


Demonstration  or  experimental  work  in  providing  low  cost1 
homes.  An  appropriation  of  state  funds  to  aid  workers  in  acquir- 
ing homes  was  approved  in  Massachusetts  in  1917.  This  appropria- 
tion was  the  result  of  an  agitation  begun  as  far  back  as  1908  for  state 
aid  in  obtaining  homes.  A special  commission  was  appointed  to  con- 
sider the  matter  and  a number  of  laws  bearing  on  the  subject  were 
enacted  by  the  legislature.  These  various  activities  finally  resulted 
in  the  formulation  of  a constitutional  amendment  which  authorizes  the 
condemnation  of  land  to  relieve  congestion  of  population.  The  amend- 
ment was  adopted  in  1915  and  reads  as  follows: 

“The  general  court  shall  have  power  to  authorize  the  common- 
wealth to  take  land  and  to  hold,  improve,  sub-divide,  build  upon  and 
sell  the  same,  for  the  purpose  of  relieving  congestion  of  population 
and  providing  homes  for  citizens : provided,  however,  that  this  amend- 
ment shall  not  be  deemed  to  authorize  the  sale  of  such  land  or  build- 


11 3D 


mgs  at  less  than  the  cost  thereof.”  (Forty-third  Article  of  Amend- 
ments.). 

Legislation  enacted  in  1917  (chap.  310)  and  amended  in  1918 
(Chap,  204)  gives  the  following  powers  to  a homestead  commission: 

“Sec.  1.  The  homestead  commission  is  hereby  authorized,  with 
the  consent  of  the  governor  and  council,  to  take  or  purchase  in  behalf 
of  and  in  the  name  of  the  commonwealth,  a tract  or  tracts  of  land 
for  the  purpose  of  relieving  congestion  of  population  and  providing 
homesteads,  or  small  houses  or  plots  of  ground,  for  mechanics,  labor- 
ers, wage  earners  of  any  kind,  or  others,  citizens  of  this  common- 
wealth; and  may  hold,  improve,  subdivide,  build  upon,  sell,  repurchase, 
manage  and  care  for  such  land  and  the  buildings  constructed  thereon, 
in  accordance  with  such  terms  and  conditions  as  may  be  determined 
upon  by  the  commission. 

“Sec.  2.  The  commission  may  sell  land  acquired  hereunder,  or  any 
part  thereof,  with  or  without  buildings  thereon,  for  cash,  or  upon  such 
installments,  terms  and  contracts,  and  subject  to  such  restrictions  and 
conditions  as  may  be  determined  upon  by  the  commission,  and  the  com- 
mission may  take  mortgages  upon  said  land  with  or  without  buildings 
thereon  for  such  portiorTof  the  purchase  price  and  upon  such  terms  as 
it  shall  deem  advisable,  but  no  tract  of  land  shall  be  sold  for  less  than 
its  cost,  including  the  cost  of  any  buildings  thereon.  All  proceeds  from 
the  sale  of  land  and  buildings  or  other  sources  shall  be  paid  into  the 
treasury  of  the  commonwealth.” 

The  terms  of  the  constitutional  amendment  and  the  statutes  enacted 
for  carrying  its  provisions  into  effect  expressly  discard  any  theory  of 
charity  or  of  absorption  of  excessive  land  values  in  home  building. 

The  report  of  the  homestead  commission  in  1917  urged  that  there 
were  not  enough  wholesome  low  cost  dwellings  ; that  there  was  no  pros- 
pect that  present  methods  would  ever  supply  enough,  unless  the  state 
encouraged  their  construction ; and  that,  therefore,  the  state  should 
experiment  to  learn  whether  it  is  possible  to  build  wholesome  homes 
within  the  means  of  low  paid  workers. 

In  its  recommendations  the  homestead  commission  asked  for  an 
appropriation  sufficiently  large  to  allow  an  experiment  or  demon- 
stration to  be  made  in  providing  low  cost  homesteads  in  the  suburbs  of 
cities  and  towns.  In  the  language  of  the  report : “The  Commission 

repeats  that  it  is  not  recommending  that  the  Commonwealth  enter 
the  real  estate  business  for  the  purpose  of  supplying  wholesome  homes 
for  low-paid  workers,  no  matter  how  great  the  social  or  individual 
need  may  be.  It  only  recommends  an  appropriation  for  a single  ex- 
periment or  demonstration,  to  learn  whether  it  is  financially  possible 
to  supply  such  homes  for  workers,  what  are  the  principles  and  policies 
upon  which  such  an  undertaking  should  proceed,  what  are  the  dangers 
and  what  should  be  the  limitations.” 


Government  aid  to  home  owning  in  foreign  countries.  The 

methods  of  regulation  differ  greatly  in  detail  in  the  different  foreign 


1140 


countries.  A recent  study  by  the  United  States  bureau  of  labor  sta- 
tistics (bulletin  whole  no.  158)  has  grouped  the  different  systems  of 
government  aid  under  the  following  classification:  (1)  Building  di- 

rectly for  rental  or  sale,  for  government’s  own  employees  or  for  work- 
ing people  generally;  (2)  Making  loans  of  public  funds,  including 
also  government  guaranty  of  loans  to  local  authorities,  non-commer- 
cial building  associations,  to  savings  banks  whose  deposits  are  guaran- 
teed, or  to  employers  or  individuals;  (3)  Granting  exemptions  from, 
or  concessions,  in  taxes  or  fees  or  granting  some  other  form  of  sub- 
sidy to  building  associations  or  others. 

Under  these  various  methods  different  foreign  countries  have  ex- 
pended large  sums  of  public  funds  to-  aid  in  the  erection  of  low  cost 
dwellings  for  wage  earners. 


State  loans  for  purchase  of  homes.  Under  the  Constitution  of 
North  Dakota,  as  recently  amended,  this  state  may  engage  in  substan- 
tially any  industrial  enterprise.  North  Dakota  legislation  of  1919  de- 
clares that  “for  the  purpose  of  promoting  home  building  and  owner- 
ship the  state  of  North  Dakota  shall  engage  in  the  enterprise  of  pro- 
viding homes  for  residents  of  the  state,”  and  creates  a Home  Building 
Association  for  the  purpose  of  conducting  this  business.  An  Appropri- 
ation of  $100,000  was  made  for  the  work  of  this  association,  and 
further  provision  was  made  for  the  accumulation  of  funds  out  of  the 
earnings  of  the  association. 

No  home  is  to  be  built  or  purchased  and  sold  at  a price  exceeding 
$5,000,  except  in  the  case  of  farm  homes,  in  which  case  the  selling 
price  may  not  exceed  $10,000.  Home  Buyers’  Leagues  are  to  be  or- 
ganized. Whenever  a member  of  a league  has  deposited  with  the  as- 
sociation a sum  equal  to  twenty  per  cent  of  the  total  selling  price  of  a 
home  or  farm  house,  the  association  is  required  upon  his  application 
to  purchase  or  build  such  home  and  to  convey  it  to  him  upon  a cash 
payment  of  twenty  per  cent,  the  balance  to  be  secured  by  a mortgage, 
and  further  payments  to  be  made  on  an  amortization  plan  so  as  to  ex- 
tinguish the  debt  within  a period  of  not  less  than  ten  nor  more  than 
twenty  years.  In  case  of  accident,  crop  failure  or  other  event  which 
reduces  the  buyers’  reasonable  income  by  one-half,  all  payments  under 
such  contract  may  be  extended  from  time  to  time  for  a period  of  one 
year. 

In  the  commonwealth  of  Australia  the  separate  states  have  grad- 
ually developed  legislation  under  which  workers  have  been  enabled  to 
borrow  government  funds  for  the  purpose  of  acquiring  homes.  All  of 
the  six  states  of  the  commonwealth  lend  money  to  farmers  for  buying 
homesteads  in  the  country,  and  five  of  the  states  lend  their  funds  to 
workers  in  general,  for  the  purchase  of  city  or  surburban  homes. 

The  money  advanced  is  loaned  directly  by  a government  adminis- 
trative board  or  bank  to  the  individual  borrower.  In  addition  to  making 
loans  direct  to  individuals,  Western  Australia  and  New  South  Wales 
also  buy  private  land  or  use  crown  land  for  the  erection  of  dwellings  to 


1141 


be  sold  or  rented  to  workingmen  of  limited  means ; in  such  cases  long 
term  leases  have  been  the  rule.  The  administration  of  the  system  in  the 
different  Australian  states  is  delegated  to  a special  board  usually  within 
the  treasury  department.  The  funds  are  raised  either  by  annual  ap- 
propriation or  by  the  issue  of  bonds.  A prospective  borrower  must 
show  that  he  is  a wage  earner,  as  determined  by  his  income.  The 
maximum  amount  loaned  to  an  individual  varies  in  the  different  states. 
The  terms  of  loans  range  from  15  to  42  years  with  the  privilege  of 
anticipating  repayments  at  any  time. 


Legislation  in  force  in  Australian  states.  The  following  legis- 
lation providing  for  the  use  of  government  funds  in  the  purchase  of 
homes  for  workers  has  been  enacted  in  Australia : 

New  South  Wales: 

Savings  Bank  Amendment  Act,  1913. 

Workers’  Dwellings  Act,  1912. 

Queenland : Advances  for  Homes  Act,  1909  ; amended  1911,  1912. 

South  Australia:  Advances  for  Homes  Act,  1910;  amended  1911, 
1912. 

Victoria:  Savings  Bank  Act,  1890;  amended  1896,  1900,  1901, 

1903,  1910,  1912. 

Western  Australia:  Workers’  Homes  Act,  1911;  amended  1912. 

In  New  Zealand,  government  aid  to  housing  is  granted  under  two 
different  systems  embodied  in  two  acts : The  Workers’  dwelling  act, 
1910 ; and  the  State  advances  act,  1913.  The  official  year  book  of  New 
Zealand  for  1913  gives  a full  account  of  these  two  systems.  Under 
the  State  advances  act  money  may  be  loaned  for  the  purpose  of  pur- 
chasing or  erecting  a dwelling  on  a land  allotment.  The  loan  may  not 
exceed  $2,200,  and  in  no  case  may  it  exceed  the  value  of  the  house  to 
be  erected.  Application  for  the  loan  may  be  made  to  the  postoffice  or 
to  any  representative  of  the  valuation  department.  To  be  entitled  to 
a loan  a worker  must  show  that  he  is  engaged  in  manual  or  clerical 
work,  and  that  his  income  is  not  over  $973  per  annum.  A first  mort- 
gage is  required  as  security.  Interest  is  charged  at  a rate  of  five  per 
cent  and  is  reducible  to  four  and  one-half  per  cent  upon  prompt  pay- 
ment. Payments  are  made  in  equal  annual  or  semi-annual  instalments. 
At  the  time  of  taking  a loan  a deposit  of  about  $50.00  is  required,  to- 
gether with  a small  valuation  fee  of  about  $2.00.  The  main  purpose  of 
the  Workers’  dwellings  act  is  to  set  apart  crown  lands  or  to  acquire 
private  lands  for  the  erection  of  homes  for  worjcers.  The  purchase 
of  a dwelling  is  effected  by  a deposit  of  about  $50.00  and  the  pay- 
ment of  equal  annual  instalments  distributed  over  a period  of  25*4 
years.  Under  this  system  workers  may  secure  their  homes  by  the 
payment  of  amounts  about  equal  to  ordinary  rent.  The  houses  are  ar- 
ranged in  convenient  groups  to  suit  the  requirements  of  the  work- 
ers concerned.  The  act  defines  a worker  as  one  whose  earnings  do  not 


1142 


exceed  $850  per  annum,  and  who  is  landless.  In  his  annual  report  for 
1911  the  superintendent  of  workers’  dwellings  thus  summed  up  the 
benefits  from  the  act:  “Except  for  the  deposit  of  ten  pounds  ($48.67) 
no  capital  is  required;  the  land  is  cheap,  the  government  being  able 
to  secure  convenient  blocks  at  a lower  price  than  is  ordinarily  paid  for 
single  sections;  the  cost  of  erection  is  reduced  to  a minimum,  there 
are  practically  no  legal  charges,  and  every  facility  will  be  given  to 
purchasers  to  pay  any  extra  sums  off  the  principal  owing  whenever 
they  may  be  able  to  do  so.”  (1911  Report,  p.  2.) 


Government  guaranty  of  bonds  of  building  companies.  The 

province  of  Ontario,  Canada,  has  developed  a method  of  combining 
government  aid  and  private  initiative  through  the  guaranty  of  bonds 
of  incorporated  companies  which  devote  themselves  to  the  improve- 
ment of  housing  accommodations.  A recent  report  of  the  Bureau  of 
Labor  of  the  province  gives  the  following  account  of  the  plan  : 

“An  important  act  was  passed  (May  6,  1913)  to  encourage  hous- 
ing accommodation  in  cities  and  towns.  This  law  enables  city  or  town 
councils  to  guarantee  the  bonds  of  an  incorporated  company  with  a 
share  capital,  whose  main  purposes  are  the  acquisition  of  lands  in  or 
near  a city  or  town  in  Ontario,  and  the  building  thereon  of  moderate 
sized  dwellings  to  be  rented  at  moderate  rents,  if  the  council  is  satisfied 
that  additional  housing  accommodation  is  urgently  needed,  and  pro- 
vided that  the  main  purpose  of  the  company  is  to  help  in  supplying 
need  and  not  to  make  profits.  The  by-law  guaranteeing  the  bonds 
must  be  approved  either  by  the  ratepayers  or  by  the  provincial  board 
of  health.  Before  the  guaranty  is  given  the  location  of  the  lands  se- 
lected and  the  general  plans  for  the  houses  shall  be  approved  by  the 
council,  or  a committee  thereof.  The  total  amount  of  the  securities  to 
be  guaranteed  shall  not  in  the  first  instance  exceed  85  per  cent  of  the 
value  of  the  lands  and  improvements.  A council  which  guarantees 
the  bonds  of  such  a company  may  be  represented  on  the  board  of  di- 
rectors by  one  member  of  the  board.  The  company  may  not  declare 
a dividend  exceeding  6 per  cent  per  annum,  but  if  the  dividends  in  any 
year  do  not  amount  to  6 per  cent,  the  deficiency  with  interest  may  be 
made  up  in  any  subsequent  year  or  years.  Any  profits  remaining  after 
paying  a 6 per  cent  dividend,  making  up  any  deficiencies,  and  provid- 
ing a reasonable  contingent  fund,  shall  be  expended  in  acquiring  more 
lands,  improving  the  housing  accommodation,  or  redeeming  the  capital 
stock.  The  shares  so  redeemed  shall  not  become  extinct,  but  shall  be 
held  by  a board  of  trustees.”1 

Under  this  act  and  very  shortly  after  its  passage,  the  city  council 
of  Toronto  voted  to  guarantee  bonds  to  the  amount  of  $850,000  in 


1 Fourteenth  Report  of  the  Bureau  of  Labor  of  the  Province  of  Ontario, 
1913.  Toronto,  1914,  p.  308. 


1143 


favor  of  the  Toronto  Housing  Co.  This  company  had  been  active  in 
pushing  the  above  legislation.2 


Farm  loans  and  housing  in  cities.  The  problem  here  under  dis- 
cussion has  two  aspects:  (1)  The  provision  of  proper  housing  facil- 

ities. (2)  Ownership  of  homes.  The  matter  here  under  discussion 
bears  a close  relationship  to  the  problems  of  farm  tenancy  and  farm 
loans,  discussed  in  Bulletin  No.  13  of  this  series. 

2 United  States,  Department  of  Labor,  Bureau  of  Labor  Statistics.  Bulletin, 
Whole  No.  158,  Government  aid  to  home  owning  and  housing  of  working  people 
in  foreign  countries.  Oat.  15,  1914.  Washington  Gov.  print,  1915,  p.  439. 


1144 


IV.  SOCIAL  INSURANCE. 


Compulsory  health  insurance.  Compulsory  health  insurance 
has  been  adopted  in  a large  number  of  industrial  countries  since  its 
first  adoption  in  Germany  in  1883.  For  some  years  there  has  been  a 
strong  movement  for  the  compulsory  health  insurance  in  this 
country,  and  this  movement  has  been  primarily  directly  by  the  Amer- 
ican Association  for  Labor  Legislation,  which  has  prepared  a model 
bill  upon  the  subject.  The  proposal  of  this  association  has  been  intro- 
duced in  a number  of  state  legislatures.  The  movement  for  compul- 
sory health  insurance  did  not  begin  actively  in  this  country,  until  after 
workmens’  compensation  laws  had  been  passed  in  a number  of  states. 

In  a number  of  states,  commissions  have  been  appointed  to  investi- 
gate the  subject  of  health  insurance.  A Massachusetts  commission  re- 
ported in  1917  in  favor  of  compulsory  health  insurance,  but  a second 
commission  in  1918  made  a contrary  recommendation.  Perhaps  the 
three  most  important  reports  prepared  by  state  commissions  are  those 
of  California  in  1917,  and  of  Ohio  and  Illinois  in  1919.  The  Cali- 
fornia and  Ohio  commissions  reported  in  favor  of  health  insurance, 
and  the  Illinois  commission  against  health  insurance.1 

In  view  of  the  fact  that  compulsory  workmen’s  compensation  laws 
have  been  upheld  by  the  United  States  Supreme  Court  and  that  some 
of  these  laws  are  organized  upon  an  insurance  basis,  it  is  possible  that 
the  courts  would  uphold  the  validity  of  compulsory  health  insurance. 
However,  this  matter  is  doubtful,  and  the  California  commission  rec- 
ommended the  adoption  of  a constitutional  amendment  expressly  au- 
thorizing compulsory  health  insurance.  A proposed  amendment  was 
submitted  in  California  in  1918  and  rejected  by  the  people.  The  text 
of  this  proposed  amendment  is  here  quoted : “It  is  hereby  declared  to 
be  the  policy  of  the  State  of  California  to  make  special  provision  for 
the  health  and  welfare  and  the  support  during  illness  of  any  and  all 
persons,  and  their  dependents,  whose  incomes,  in  the  determination  of 
the  legislature,  are  not  sufficient  to  meet  the  hazards  of  sickness  and 
disability,  and  for  the  general  industrial  welfare  in  this  connection. 
The  legislature  may  establish  a health  insurance  system  applicable  to 
any  or  all  such  persons,  and  for  the  financial  support  of  such  system 
may  provide  for  contributions,  either  voluntary  or  compulsory,  from 
each  of  the  following,  namely,  from  such  persons,  from  employers,  and 
from  the  state  by  appropriations. 

*A  full  review  of  the  subject  with  respect  to  Illinois  will  be  found  in  the 
Report  of  the  Health  Insurance  Commission  of  the  State  of  Illinois,  1019,  p. 
647.  See  also  Report  of  the  Ohio  Health  and  Old  Age  Insurance  Commission, 
1919,  p.  448. 


1145 


“The  legislature  may  confer  upon  any  commission  or  court,  now  or 
hereafter  created,  such  power  and  authority  as  the  legislature  may 
deem  requisite  to  carry  out  the  provisions  of  this  section. 

“The  provisions  of  this  section  shall  not  be  controlled  or  limited  by 
any  other  provision  of  this  constitution,  except  the  provisions  thereof, 
relating  to  the  passage  and  approval  of  acts  by  the  legislature  and  to 
the  referendum  thereof.” 


Unemployment  insurance.  The  subject  of  unemployment  in- 
surance assisted  by  governmental  funds  has  not  been  actively  dis- 
cussed in  this  country  but  may  be  presented  in  some  manner  to  the 
constitutional  convention.  This  whole  subject  will  be  found  thor- 
oughly discussed  in  a book  by  I.  G.  Gibbon,  Unemployment  Insur- 
ance. A study  of  schemes  of  assisted  insurance  (London,  1911). 


Old  age  pensions.  Governmental  pension  schemes  exist  in 
Illinois  for  teachers  and  for  a number  of  classes  of  local  employes. 
A full  statement  regarding  these  pension  schemes  will  be  found  in  the 
reports  of  the  Illinois  Pension  Laws  Commission.2  In  the  Pension 
Laws  Commission  Report  for  1918-19  will  be  found  a full  review  of 
the  constitutional  aspects  of  legislation  providing  for  pensions  of  pub- 
lic employes.  Another  type  of  so-called  pension  legislation  in  this 
state  is  that  which  has  to  do  with  mothers’  pensions.  There  has  been 
no  effort  to  enact  pension  legislation  in  this  state  other  than  that  based 
either  on  the  notion  that  a pension  is  part  of  an  official  compensation 
or  upon  the  notion  that  the  pension  is  a means  by  which  the  state 
takes  care  of  its  wards.  In  the  case  of  People  v.  Abbott,  274  111.  380 
(1915)  the  Supreme  Court  said  as  to  pensions  of  public  employes: 
“Such  pensions  generally  are  not  considered  donations  or  gratuities. 
The  rule  in  the  majority  of  jurisdictions  is  that  the  legislature  has 
power  to  require  municipalities  to  pension  their  employes  and  raise 
the  funds  for  that  purpose.” 

A plan  of  old  age  pensions  involves  different  constitutional  ele- 
ments from  the  pensions  just  referred  to,  although  old  age  pensions 
may  perhaps  be  constitutionally  justified  on  the  ground  that  they  con- 
stitute a legitimate  means  of  preventing  pauperism. 

Old  age  pensions  have  been  adopted  in  a number  of  countries.  A 
full  review  of  English  legislation  and  its  operation  will  be  found  in  a 
book  by  H.  J.  Hoare,  Old  Age  Pensions  (London,  1915). 

The  subject  of  old  age  pensions  has  been  investigated  in  recent 
years  by  several  state  commissions.  A report  of  a special  commission 
in  Massachusetts  in  1910  was  adverse  to  old  age  pensions  and  com- 
pulsory old  age  insurance  and  recommended  that  if  any  scheme  were 
adopted  it  should  be  a voluntary  contributory  scheme.  A report  was 

2 ’Report  of  Illinois  Pension  Laws  Commission  1916.  Report  of  Illinois  Pen- 
sion Laws  Commission,  1918-19. 


1146 


made  in  1919  by  a Pennsylvania  commission  on  old  age  pensions.  This 
report  gives  a complete  review  of  old  age  pensions  in  all  countries 
which  have  adopted  such  a plan.  It  discusses  separately  the  voluntary 
and  subsidized  systems ; the  system  of  compulsory,  contributory  old 
age  insurance ; and  the  non-contributory  or  straight  pension  system.  In 
1919  also  a report  on  health  insurance  and  old  age  pensions  was  made 
by  the  Ohio  Health  and  Old  Age  Pension  Insurance  Commission. 

Little  has  been  done  in  this  country  in  the  form  of  legislation  re- 
garding old  age  pensions.  Massachusetts  adopted  in  1908  a plan  of 
savings  bank  insurance  which  was  intended  to  enable  wage  earners  to 
secure  life  insurance  or  annuities  at  the  lowest  possible  cost,  and  to 
encourage  savings  among  workingmen.  The  expense  of  administering 
the  savings  bank  insurance  is  borne  largely  by  the  state.  Wisconsin  in 
1911  adopted  a state  insurance  system,  although  the  expense  of  the 
administration  in  this  state  is  paid  from  the  insurance  funds. 

“No  system  of  old  age  pensions  is  in  force  in  continental  United 
States  but  the  territory  of  Alaska  has  an  optional  system  whereby  an 
aged  person  may  receive  a monthly  pension  of  $12.50  in  lieu  of  going 
to  the  Pioneers’  Home  at  Sitka.  The  recipient  of  a pension  must  be 
65  years  of  age  or  over  and  a resident  of  Alaska  for  10  years  or  since 
1905.  Arizona  adopted  an  old  age  pension  plan  through  an  initiated 
act  adopted  November,  1915,  but  being  crude  and  plainly  unconstitu- 
tional in  its  form,  it  was  promptly  declared  void  by  the  Arizona  Su- 
preme Court.”3 

The  New  Hampshire  House  of  Representatives  sought  in  1917  the 
advice  of  the  Supreme  Court  of  that  state  as  to  the  constitutionality  of 
old  age  pensions.  New  Hampshire  has  a constitutional  provision  that 
“Economy  being  a most  essential  virtue  in  all  states,  especially  in  a 
young  one,  no  pension  should  be  granted  but  in  consideration  of  actual 
services ; and  such  pensions  ought  to  be  granted  with  great  caution  by 
the  legislature  and  never  for  more  than  one  year  at  a time.”  The 
court  took  the  view  that  the  constitutional  provision  prohibited  a sys- 
tem of  old  age  pensions.  A similar  view  would  almost  necessarily  be 
taken  by  the  courts,  upon  the  basis  of  constitutional  provisions  regard- 
ing pensions  in  Maryland  and  South  Carolina. 


Constitutional  problems  in  connection  with  social  insurance. 

The  constitutional  problem  with  respect  to  social  insurance  primarily 
concerns  the  use  of  public  funds  in  aid  of  such  schemes.  It  may  be 
regarded  as  constitutionally  doubtful  whether  the  general  assembly  of 
this  state  may  appropriate  or  authorize  the  appropriation  of  public 
funds  for  the  payment  of  unemployment  or  health  insurance  or  of  old 
age  pensions.  A full  discussion  of  the  constitutionality  of  old  age  pen- 
sions will  be  found  in  F.  J.  Goodnow’s  Social  Reform  and  the  Consti- 
tution (New  York,  1911). 


3 Report  of  Ohio  Health  and  Old  Age  Insurance  Commission  p.  271. 


1147 


V.  SOLDIERS’  BONUSES  AND  PREFERENCES. 


This  chapter  attempts  to  review  the  types  of  state  legislation 
which  supplements  federal  action  with  respect  to  payment  or  aid  to 
soldiers. 

In  Illinois  limited  provisions  were  enacted  in  1919,  giving  certain 
preferences  to  returned  soldiers.  Among  these  provisions  is  that  for 
free  scholarships  at  the  State  University  and  the  state  normal  schools, 
the  scholarships  covering  tuition  and  matriculation  charges,  (p.  922.) 
Certain  preferences  are  also  given  returned  soldiers  under  civil  service 
laws,  particularly  as  to  appointments  under  the  state  classified  service 
(p.  292)  ; under  park  boards  (p.  290);  and  under  civil  service  in 
cities  (p.  287).  Under  the  state  teachers’  pension  and  retirement  fund, 
an  amendment  (p.  706)  provides  that  time  spent  with  military  and 
naval  forces  is  to  be  computed  as  part  of  the  25-year  period  of  teach- 
ing service,  providing  the  returned  soldier  makes  contributions  to  the 
pension  fund  covering  the  period  of  his  military  service.  Another  act 
(p.  533)  authorizes  the  director  of  labor  to  secure  information  as  to 
the  rehabilitation  of  discharged  soldiers  and  sailors  in  industry. 

Some  of  the  states  have  provided  small  cash  payments  and 
bonuses  in  the  way  of  scholarships  in  educational  institutions.  Some 
merely  give  exemptions  from  tuition  and  matriculation  fees.  A law 
enacted  by  the  legislature  of  Minnesota  (Laws,  1919,  chap.  338)  pro- 
vides tuition  for  soldiers  in  the  University  of  Minnesota,  in  the  state 
normal  schools,  in  any  college  of  the  state  which  participated  in  the 
students’  army  training  corps’  work,  and  in  other  colleges  and  schools 
in  the  state.  The  total  allowance  for  tuition  to  any  person  is  not  to 
exceed  $200.  In  New  York  provision  is  made  (Laws  1919,  chap.  606) 
for  450  state  scholarships  for  world  war  veterans.  These  scholarships 
include  $100  a year  for  tuition  and  $100  additional  for  maintenance. 
Not  more  than  three  persons  may  be  appointed  for  the  same  period 
from  any  assembly  district.  Oregon  grants  a bonus  of  $25  a month  or 
$200  a year  for  four  years  for  educational  purposes  to  any  honorably 
discharged  soldier  (Laws,  1919,  chap,  428).  The  state  of  Washington 
exempts  returned  soldiers  from  paying  fees  at  the  state  university. 
(Laws,  1919,  chap.  63.)  In  Massachusetts  each  officer,  enlisted  man, 
or  other  person  having  received  an  honorable  discharge  from  military 
service  may  obtain  a direct  bonus  of  $100  upon  making  application  to 
the  proper  authorities  (Laws,  1919,  chap.  283).  In  its  regular  session 
for  1919,  North  Dakota  made  an  allowance  of  $25  a month  for  each 
month  in  service,  to  be  applied  for  expenses  of  education  or  for  the 
purchase  of  a home  or  farm.  A bill  introduced  in  the  special  session 
provides  for  a slight  increase  in  the  amount  of  compensation  to  be 


1148 


granted,  and  makes  the  necessary  increase  for  this  purpose  in  the  tax 
levy. 

Important  legislation  has  been  enacted  for  soldiers’  bonuses  in 
Minnesota  and  Wisconsin.  A Minnesota  act  approved  September  22, 
1919,  provides  that  each  soldier  or  sailor  shall  receive  from  the  state 
the  sum  of  fifteen  ($15)  dollars  for  each  and  every  month  and  fraction 
thereof  of  service  during  the  war.  No  soldier,  however,  is  to  receive 
less  than  fifty  dollars.  Sums  received  for  tuition  under  a law  referred 
to  in  the  preceding  paragraph  are  to  be  deducted,  certificates  of  in- 
debtedness not  exceeding  $20,000,000  are  authorized  to  carry  out  the 
provisions  of  the  act. 

Wisconsin  has  gone  furthest  in  working  out  a co-ordination  be- 
tween education  and  bonus.  A general  soldiers’  bonus  law  provides 
ten  ($10)  dollars  a month  for  each  month  a soldier  was  in  service. 
An  educational  bonus  law  provides  that  a soldier  shall  “be  entitled  to 
receive  thirty  dollars  per  month  while  in  regular  attendance  as  a 
student  at  any  such  institution,  but  not  to  exceed  a total  of  one  thou- 
sand and  eighty  dollars  in  lieu  of  the  soldier  bonus  provided  for  in 
chapter  667  of  the  Laws  of  1919,  except  as  hereinafter  provided.” 
The  educational  bonus  law  provides  methods  for  its  administration ; 
defines  the  institution  that  may  be  attended ; and  imposes  an  additional 
surtax  on  incomes,  and  a state  tax  not  to  exceed  one  mill  on  each 
dollar  for  a period  of  five  years,  to  defray  expenses  under  the  act. 
Persons  receiving  the  $10  bonus  may  also  receive  free  correspondence 
instruction.1 


Preference  in  public  employment.  Quite  a number  of  the 

states  have  enacted  legislation  giving  returned  soldiers  preference  in 
appointments  under  civil  service  regulations,  and  have  also  provided 
for  their  preference  in  public  employment.  Among  the  states  that 
have  enacted  provisions  of  this  kind  during  the  legislative  session  of 
1919  are:  California  (p.  1350)  ; Illinois  (pp.  287,  290  and  292)  ; In- 
diana (pp.  423  and  872)  ; Kansas  (p.  378)  ; Michigan  (p.  402)  ; Ore- 
gon (pp.  223,  248,  251  and  809)  ; South  Dakota  (p.  373)  ; Washington 
(chap.  14  and  26)  ; and  New  York  (chap.  225).  New  York  has  re- 
ferred a constitutional  amendment  to  the  next  legislature  providing  for 
preference  for  soldiers  in  the  civil  service  (p.  1793). 

The  federal  government  also  gives  preference  in  civil  service  ap- 
pointments to  honorably  discharged  soldiers,  sailors  and  marines,  and 
their  widows.  Preference  in  appointments  to  civil  service  positions  is 
further  extended  to  wives  of  injured  soldiers,  sailors  or  marines  who 
themselves  are  not  qualified,  but  whose  wives  are  qualified  to  hold  such 
positions. 


1 For  a review  of  the  Wisconsin  legislation,  see  Review  of  Reviews,  Decem- 
ber, 1919,  and  Wisconsin’s  Educational  Horizon,  Vol.  2,  No.  1 (September,  1919). 


1149 


Admission  to  professions.  In  the  legislative  sessions  for  1919, 
certain  states  made  provision  to  facilitate  the  admission  of  returned 
soldiers  to  the  learned  professions,  particularly  in  those  cases  in  which 
their  course  of  study  was  interrupted  by  the  war.  Thus  Michigan  re- 
duces the  regular  period  for  prior  study  for  admission  to  the  bar  ex- 
amination from  three  years  to  two  years  in  a law  school  and  makes  a 
corresponding  reduction  for  study  with  a preceptor.  Maine  likewise 
provides  for  admission  to  examination  at  the  end  of  two  years’  study 
and,  in  recognition  of  the  time  required  for  recuperation  on  the  part  of 
returned  soldiers,  lowers  the  passing  grade  to  60  per  cent.  (p.  15.) 
New  York  makes  special  provision  for  conferring  degrees  on  dental 
students  who  were  in  the  military  service  (chap.  422). 


Exemptions  from  certain  taxes  and  fees.  Provision  is  made  in 
a number  of  states  for  certain  small  tax  exemptions  and  also  for  ex- 
emption from  the  payment  of  certain  fees.  Among  the  states  which 
enacted  such  provisions  in  1919  are:  California  (pp.  139,  160,  269 

and  305)  ; Indiana  (pp.  199,  697  and  823)  ; Maine  (chap.  105  and 
218)  ; Michigan  (pp.  432  and  585)  ; and  New  Mexico  (p.  345).  Pro- 
visions exempting  soldiers  from  the  necessity  of  securing  hucksters’ 
and  peddlers’  licenses  are  found  in  New  York  (chap.  42),  Delaware 
(p.  49)  and  Minnesota  (p.  484). 


Land  settlement  plans  for  soldiers.  The  most  substantial  pro- 
visions so  far  enacted  by  the  different  states  are  the  land  settlement 
acts  to  provide  homes  for  returned  soldiers. 

The  national  soldiers’  settlement  bill  has  been  pending  in  congress 
for  many  months.  This  bill  embodies  the  general  plan  of  the  federal 
government  to  cooperate  with  the  several  states  in  providing  employ- 
ment and  rural  homes  for  returned  soldiers.  Under  this  reclamation 
and  settlement  plan  of  the  federal  government  the  country  is  to  be 
divided  into  three  general  divisions  corresponding  to  three  types  of 
land  to  be  settled.  The  northern  division  comprises  mainly  the  cut- 
over timber  land  lying  principally  in  Maine,  Michigan,  Wisconsin  and 
Minnesota.  The  southern  division  consists  mostly  of  swamp  lands 
south  of  the  Ohio  boundary.  The  western  division  includes  the  arid 
lands  west  of  the  Dakotas  and  Nebraska.  Over  two  hundred  million 
acres  of  unused  swamp,  cut-over,  and  arid  lands  are  available  under 
reclamation  and  irrigation  plans  embodied  in  the  federal  land  settle- 
ment bill.  The  normal  size  of  the  farms  will  be ’80  acres.  Half  of  the 
land  will  be  completely  or  partially  prepared  by  the  government,  which 
will  also  erect  houses  and  barns  and  supply  equipment  necessary  for 
cultivating  the  land.  The  original  payment  on  the  land  will  be  5 per 
cent  of  the  cost  and  the  remaining  payments  will  be  extended  over  a 
period  of  forty  years. 


1150 

State  legislation  for  cooperation  with  the  federal  government  in 
this  plan  for  the  settlement  of  soldiers  was  enacted  in  a majority  of 
the  states  in  1919,  but  since  these  state  laws  provide  for  cooperation 
with  the  federal  government  in  the  manner  provided  in  the  national 
soldiers'  settlement  bill  this  state  legislation  must  remain  largely  in- 
effective until  the  federal  bill  is  enacted  by  congress. 

Legislation  typical  of  the  general  movement  to  cooperate  with  the 
federal  government  in  its  land  settlement  plan  may  be  found  in: 
Arizona  (Laws  1919,  chap.  141)  ; California  (Laws  1919,  pp.  838  and 
1182)  ; Colorado  (Laws  1919,  chap.  151)  ; Maine  (Laws  1919,  chap. 
189)  ; Missouri  (Laws  1919,  p.  704)  ; New  Mexico  (Laws  1919,  chap. 
127;  Oregon  (Laws  1919,  chap.  303)  ; South  Dakota  (Laws  1919,  p. 
374)  ; Tennessee  (Laws  1919,  chap.  140)  ; Utah  (Laws  1919,  chap. 
74  and  106)  ; Washington  (Laws  1919,  chap.  188)  ; and  Wyoming 
(Laws  1919,  p.  242). 

Most  of  this  legislation  was  originally  enacted,  or  else  amended  in 
1919,  with  the  direct  object  of  coordinating  federal  and  states  agencies 
for  soldier  settlement.  Thus  the  Oregon  law  (1919),  chap.  303) 
declares : 

“Section  2.  The  object  of  this  act  is  to  provide  useful  employ- 
ment and  the  opportunity  to  acquire  farm  homes  with  profitable  liveli- 
hood on  the  land  for  soldiers,  sailors  and  marines  honorably  discharged 
from  the  service  of  the  United  States  and  other  qualified  settlers  and 
to  provide  for  cooperation  of  the  state  with  the  agencies  of  the  United 
States  engaged  in  work  of  a similar  character.” 

“Section  7.  For  the  purpose  of  this  act  the  commission  may  also, 
under  contract  with  the  United  States,  or  any  department  thereof, 
undertake  any  work  of  farm  improvement,  subdivision  of  land,  super- 
vision of  the  settlement  of  land  and  the  selection  of  settlers,  the  agri- 
cultural training  of  prospective  settlers,  the  supervision  of  short  term 
loans,  the  rejection  of  applications  for  allotments,  the  collection  of 
moneys,  the  operation  and  maintenance  of  projects  undertaken;  and 
may  perform  any  other  acts  as  may  be  necessary  to  effect  full  coopera- 
tion with  federal  agencies  for  land  settlement  purposes.” 

A typical  act  providing  for  cooperation  with  the  United  States  in 
the  settlement  of  returned  soldiers  was  passed  in  Maine  in  1919,  (chap. 
189).  In  the  language  of  the  law: 

“The  object  of  this  act,  is,  in  recognition  of  military  service,  to 
provide  employment  and  rural  homes  for  soldiers,  sailors,  marines,  and 
others  who  have  served  with  the  armed  forces  of  the  United  States  in 
the  European  war  or  other  wars  of  the  United  States,  including  former 
American  citizens  who  served  in  allied  armies  against  the  Central 
Powers  and  have  been  repatriated,  and  who  have  been  honorably  dis- 
charged, hereafter  referred  to  generally  as  ‘soldiers’;  and  to  ac- 
complish such  purpose  by  cooperation  with  the  agencies  of  the  United 
States  engaged  in  work  of  a similar  character.” 

In  defining  the  powers  and  duties  of  the  soldier  settlement  board 
of  the  state  the  act  continues : 

“Sec.  4.  Available  lands ; cooperation  with  United  States  author- 
ities; powers  of  board.  The  board  shall  satisfy  itself  of  the  prac- 


1151 


ticability  of  each  undertaking  proposed,  utilizing  all  related  and  serv- 
iceable state  agencies,  all  which  are  hereby  authorized  and  directed  to 
cooperate  with  and  assist  said  board  in  every  way,  and  thereupon  shall 
cooperate  with  the  authorities  of  the  United  States  in  the  preparation 
of  plans  for  settlement  of  soldiers.  The  board  is  authorized  to  utilize 
public  lands  of  the  state  and  to  acquire  agricultural  lands  which  may 
be  deemed  suitable  for  settlement,  together  with  necessary  water  rights, 
rights  of  way,  and  other  appurtenances,  for  settlement  for  purposes 
of  husbandry  and  business  incidental  thereto.  When  deemed  advisable 
in  the  discretion  of  the  board  and  the  cooperating  agencies  of  the 
United  States,  any  of  said  lands  may  be  leased  until  it  may  be  deemed 
advisable  to  sell  or  use  the  same.  The  board  may  also  set  aside  and 
dedicate  to  public  use  appropriate  tracts  for  roads,  school  houses, 
churches  or  other  public  purposes.  Any  lands  belonging  to  the  state 
and  deemed  by  the  board  suitable  for  the  purposes  of  this  act  shall  be 
available  for  disposition  by  the  board  and  the  state  land  agent  and 
forest  commissioner  shall  cooperate  with  the  board  in  every  way  neces- 
sary to  carry  out  the  purposes  of  this  act  in  regard  to  such  lands.  The 
board  is  hereby  authorized  to  perform  all  acts  necessary  to  cooperate 
with  the  agencies  of  the  United  States  engaged  in  work  of. similar 
character.” 

Further  provision  is  made  in  the  act  for  opening  surplus  lands  to 
other  settlers  and  for  grouping  lands  in  “Soldiers’  Districts”.  The 
land  settlement  board  is  given  plenary  powers  in  carrying  the  act  into 
effect,  and  it  is  required  to  report  bi-annually  to  the  legislature  and  to 
make  recommendations  for  legislation.  It  is  further  required  to  fur- 
nish a copy  of  its  report  to  the  secretary  of  the  interior. 

A number  of  the  state  farm  loan  acts  were  extended  in  1919  so  as 
to  give  soldiers  preference  in  the  settlement  of  available  lands.  Among 
these  may  be  mentioned:  Arizona  (Laws  1919,  chap.  141)  ; Oregon 

(Laws  1919,  chap.  303)  ; and  South  Dakota  (Laws  1919,  p.  374). 

A proposed  amendment'  to.  the  constitution  of  Kansas  (Art.  15, 
Sec.  11)  to  be  voted  upon  in  1920  contains  a similar  preference.  The 
amendment  reads  in  part:  “To  encourage  the  purchase,  improve- 

ment and  ownership  of  agricultural  lands  and  the  occupancy  and 
cultivation  thereof,  provision  may  be  made  by  law  for  the  creation  and 
maintenance  of  a fund,  in  such  manner  and  amount  as  the  legislature 
may  determine,  to  be  used  in  the  purchase,  improvement  and  sale  of 
lands  for  agricultural  purposes.” 

“The  legislature  may  provide  reasonable  preferences  for  those 
persons  who  served  in  the  army  and  navy  of  the  United  States  in  the 
World  War  and  holding  an  honorable  discharge  therefrom.” 


Vocational  rehabilitation.  The  Federal  Government  has  made 
general  provision  for  the  vocational  rehabilitation  of  soldiers,  sailors 
and  marines.  The  several  congressional  acts  provide  for  training,  al- 
lowances and  compensation  to  persons  disabled  in  military  service  in 
the  World  War.  The  general  supervision  of  the  work  is  placed  under 


1152 


the  direction  of  the  Federal  Board  of  Vocational  Education.  (Act 
June  27,  1918,  chap.  107,  sec.  2,  as  amended  Act  July  11,  1919,  chap. 
12.  Sec.  307834  b.  U.  S.  Comp.  Stats.) 


Committees  and  boards  for  welfare  of  soldiers.  In  a number 

of  states  provision  has  been  made  for  state  committees  to  supervise 
the  employment  of  soldiers  and  to  look  after  their  welfare  generally  in 
their  readjustment  to  civil  life.  Typical  provisions  are  found  in  the 
legislation  of  1919  for  California  (p.  4)  ; Washington  (chap.  9)  ; and 
Massachusetts  (chap.  125). 

The  act  establishing  a soldier  and  sailors’  commission  in  Massa- 
chusetts covers  most  of  the  subjects  included  in  similar  legislation  for 
other  states.  It  reads  in  part  as  follows : 

“Section  1.  There  is  hereby  established  the  soldier  and  sailors’ 
commission,  whose  object  shall  be  to  investigate  the  economic  or  other 
conditions  which  have  resulted  in  the  non-employment  of  many  soldiers, 
sailors  and  marines  who  have  been  honorably  discharged  or  have  been 
released  from  the  service  of  the  United  States;  to  procure  employment 
for  them;  to  take  such  measures  as  may  be  legal  and  proper  to  induce 
former  employers  of  soldiers  and  sailors  to  reinstate  them  in  the  posi- 
tions which  they  held  before  entering  the  service ; to  provide  means  of 
'support  for  them  and  their  dependents  if  they  are  unable  to  procure 
employment,  or  if  they  are  unable  to  work  on  account  of  disability,  or 
illness ; and,  in  general,  to  befriend,  protect  and  encourage  those  citi- 
zens of  the  commonwealth  who  have  received  or  shall  hereafter  re- 
ceive an  honorable  discharge  or  release  from  the  military  or  naval 
service  of  the  United  States. 

“Section  2,  * * * The  commission  shall  serve  without  com- 

pensation, but  shall  be  allowed  such  sums  for  its  necessary  expenses 
as  may  be  approved  by  the  governor  and  council,  to  be  paid  out  of  the 
appropriation  or  appropriations  for  aiding  returning  soldiers,  sailors 
and  marines,  in  finding  employment. 

“Section  3.  The  said  commission  shall  investigate  all  cases  of 
non-employment  among  men  discharged  or  released  from  the  military 
or  naval  service  of  the  United  States  which  are  brought  to  its  attention, 
shall  ascertain,  as  far  as  possible,  how  many  discharged  soldiers  or 
sailors  are  seeking  employment,  what  kind  of  employment  they,  are 
fitted  for,  and  in  what  cities  or  towns  they  are  resident.  The  commis- 
sion shall  ascertain  from  the  municipal  authorities  of  all  cities  in  the 
commonwealth,  and  of  the  larger  towns,  what  constructive  public  work 
in  respect  to  buildings,  roads,  bridges  or  otherwise  could  advan- 
tageously be  undertaken  immediately,  or  in  the  near  future,  in  their 
respective  municipalities,  what  would  be  the  cost  of  each  undertaking, 
and  whether  it  would  be  practicable,  and  of  advantage  to  the  public. 
Similar  information  as  to  possible  constructive  work,  and  the  feasi- 
bility and  estimated  cost  thereof  shall  be' obtained  by  the  commission 
from  the  various  county  commissioners  and  from  the  commission  on 
mental  diseases,  the  state  board  of  charity,  the  state  board  of  labor  and 


1153 


industries,  the  Massachusetts  highway  commission,  the  commission  on 
waterways  and  public  lands,,  the  commissioner  of  agriculture,  the  state 
forester,  the  board  of  commissioners  on  fisheries  and  game,  the  Massa- 
chusetts commission  for  the  blind,  the  board  of  education,  the  home- 
stead commission,  the  metropolitan  park  commission,  the  metropolitan 
water  and  sewerage  board,  and  the  transit  department  of  the  city  of 
Boston.  And  it  is  hereby  made  the  duty  of  the  mayors,  or  correspond- 
ing officers  or  boards  of  cities,  of  the  selectmen  of  towns,  and  of  the 
other  officers,  boards,  commissions  and  departments  aforesaid,  to  fur- 
nish the  commission  hereby  established  with  all  the  information  which 
they  possess  as  to  the  matters  above  mentioned,  or  which  they  can  pro- 
cure by  reasonable  efforts.  The  said  information  shall  be  furnished  to 
the  commission,  as  speedily  as  possible,  in  pursuance  of  this  act,  and 
without  any  special  request  therefor.  It  shall  be  the  duty  of  the  said 
commission  to  report  from  time  to  time  to  the  general  court,  with  such 
suggestions  for  legislation  or  otherwise  as  it  may  deem  necessary  or 
proper ; and  if  any  such  report  shall  become  necessary  after  the  present 
general  court  has  been  prorogued,  it  shall  be  made  to  the  governor.” 

“Section  4.  The  commission  shall  appoint  in  such  industrial  cen- 
tres and  other  cities  and  towns  of  the  commonwealth  as  may  seem  to 
it  expedient,  local  soldiers  and  sailors’  committees,  or  may  designate 
any  existing  local  committee  or  agency  to  act  as  such  a committee,  and 
may  delegate  to  said  committees  such  powers  and  duties  as  in  the  judg- 
ment of  the  commission  may  be  necessary  effectively  to  carry  out  the 
provisions  of  this  act  in  all  parts  of  the  commonwealth.  Such  local 
committees  shall,  under  the  supervision  and  direction  of  the  commis- 
sion, exercise  the  powers  and  duties  delegated  as  aforesaid,  and  shall 
make  such  reports  to  the  commission  as  it  may  require.  The  said  com- 
mission is  hereby  authorized  to  request  any  persons,  associations  or 
corporations  which  have  already  established  agencies  or  headquarters 
for  the  relief  of  discharged  soldiers,  sailors  and  marines,  or  shall  here- 
after establish  the  same,  to  cooperate  with  the  said  commission  or  to 
restrict,  divert  or  cease  their  efforts,  as  the  commission  may  deem  best 
for  the  common  good. 

“Section  5.  The  soldiers  and  sailors’  commission  shall  continue 
in  existence  until  it  is  dissolved  by  proclamation  made  by  the  governor  ; 
tmd  the  governor  is  hereby  authorized  and  requested  to  dissolve  the 
commission  whenever,  in  his  judgment,  the  reasons  for  its  existence 
have  ceased.” 


Conclusions.  Soldiers’  preferences  in  civil  service  laws  have 
been  expressly  upheld  by  the  Supreme  Court  of  Illinois.  (People  v. 
Brady,  262  111.  578,  p.  594,  1914.)  There  would  seem  no  doubt  as  to 
the  validity  of  legislation  giving  certain  privileges  to  soldiers  in  state 
institutions  or  providing  for  the  physical  rehabilitation  of  soldiers. 

Tax  exemptions  of  soldiers  are  clearly  forbidden  by  the  present 
constitution,  which  specifies  what  tax  exemptions  may  be  made. 


1154 


There  is  no  constitutional  objection  to  legislation  providing  aid  to 
soldiers  in  obtaining  employment.  The  use  of  state  lands  for  the 
settlement  of  soldiers  is  probably  valid  in  most  states  without  consti- 
tutional change,  but  little  can  be  accomplished  by  such  a plan  in 
Illinois. 

In  some  states  plans  have  been  adopted  either  (1)  for  the  ad- 
vancement of  money  to  purchase  property  for  soldiers,  or  (2)  for  the 
payment  of  tuition  money  to  soldiers,  or  (3)  for  the  direct  payment  of 
soldiers’  bonuses.  Clearly  the  state  cannot  now  engage  in  any  banking 
enterprise  (Art.  XI,  Sec.  5).  Loans  or  advances  to  soldiers  may  be 
forbidden  by  the  provision  that : “The  state  shall  never  pay,  assume 

or  become  responsible  for  the  debts  or  liabilities  of,  or  in  any  manner 
give,  loan  or  extend  its  credit  to,  or  in  aid  of  any  public  or  other  cor- 
poration, association  or  individual”.  Article  IV,  section  19  of  the 
constitution  provides  that:  “The  general  assembly  shall  never  grant 

or  authorize  extra  compensation,  fee  or  allowance  to  any  public  officer, 
agent,  servant  or  contractor,  after  service  has  been  rendered  on  a con- 
tract made,  nor  authorize  the  payment  of  any  claim,  or  part  thereof, 
hereafter  created  against  the  state  under  any  agreement  or  contract 
made  without  express  authority  of  law ; and  all  such  unauthorized 
agreements  or  contracts  shall  be  null  and  void : Provided,  ‘the  general 
assembly  may  make  appropriations  for  expenditures  incurred  in  sup- 
pressing insurrection  or  repelling  invasion.” 

The  constitution  seems  to  have  intended  to  prevent  the  legislative 
grant  of  gratuities,  and  employes’  pension  schemes  have  been  upheld 
on  the  ground  that  the  pension  is  a deferred  payment  for  services 
rendered.  (People  v.  Abbott,  274  111.  380,  1916). 

There  is  of  course  no  legal  obligation  upon  the  state  to  pay 
bonuses  or  other  compensation  to  soldiers  who  were  in  the  service  of 
the  United  States,  and  the  constitutional  provision  just  referred  to 
might  be  held  to  forbid  such  payments.  The  question  may  also  present 
itself  as  to  whether  such  payment  would  constitute  a public  purpose 
for  which  public  money  may  be  used.  In  Taylor  v.  Thompson,  42  111. 
9 (1866),  the  state  Supreme  Court  upheld  legislation  authorizing  the 
payment  of  local  bounties  to  volunteers.1 

1 See  a further  discussion  of  such  bounties  in  Cooley’s  Constitutional  Limi- 
tations, seventh  edition,  pp.  326-333. 


1155 


VI.  INJUNCTIONS  IN  LABOR  CASES. 


Outline  of  Illinois  statute.  The  Illinois  statute  provides  that 
the  superior  court  of  Cook  County  and  the  circuit  courts  in  term  time 
and  any  judge  thereof  in  vacation  shall  have  power  to  grant  injunc- 
tions. No  injunction  is  to  be  granted  without  previous  notice  to  the 
defendants  unless  it  appears  from  the  bill  or  affidavit  that  the  right  of 
the  complainant  will  be  unduly  prejudiced  if  the  injunction  is  not  is- 
sued immediately  or  without  such  notice.  In  all  cases  other  than  those 
enjoining  a judgment  the  complainant  is  required  to  give  bond  before 
an  injunction  is  issued,  but  the  statute  provides  that  bond  need  not  be 
required  when,  for  good  cause  shown,  the  court  is  of  opinion  that 
the  injunction  ought  to  be  granted  without  bond.  Where  an  in- 
junction is  dissolved  the  court  may  before  finally  disposing  of  the 
case  hear  evidence  and  assess  damages  to  the  party  damnified  by  such 
injunction.  An  action  upon  the  injunction  bond,  if  one  is  required, 
will  also  lie. 

Any  person  violating  an  injunction  may  be  punished  for  con- 
tempt. 


Operation  of  injunction  procedure.  The  Illinois  practice  with 

respect  to  injunctions  is  similar  to  that  in  other  states,  and  a sum- 
mary should  here  be  made  of  the  manner  in  which  injunctions  operate 
in  labor  cases.  Several  points  should  be  particularly  noted : 

(a)  Where  there  are  several  judges  who  may  issue  an  injunc- 
tion, as  there  usually  are  in  a populous  community,  the  applicant 
for  the  injunction  has* a discretion  as  to  the  judge  to  whom  he  may 
app\y. 

(b)  The'  Illinois  statute  does  not  require  notice,  and  the  giving 
of  a bond  by  the  applicant  for  the  injunction  lies  within  the  discre- 
tion of  the  judge. 

(c)  The  so-called  “blanket”  injunction  has  become  common  in 
this  country  in  labor  cases.  Upon  this  matter  the  law  is  well  summed 
up  by  Burdick’s  Law  of  Torts.1 

“In  this  country  the  practice  has  grown  up  of  directing  the  in- 
junction against  all  persons  engaged  in  the  illegal  conduct  complained 
of,  although  some  may  not  be  formally  named  as  defendants  in  the 
suit,  or  served  with  process.  This  is  done  on  the  principle  that  if  the 
persons  are  numerous,  certain  ones  may  be  made  parties  defendants 
as  representatives  of  the  class.” 


1 Burdick’s  Law  of  Torts,  Third  Edition,  p.  578. 


1156 


(d)  Appeals  may  be  taken  from  the  action  of  the  court  granting 
an  injunction,  but  an  appeal  does  not  suspend  the  operation  of  the 
injunction,  and  the  court  issuing  the  injunction  may  punish  violators 
of  it  for  contempts  committed  during  the  pendency  of  the  appeal, 
even  though  upon  the  appeal  the  injunction  is  dissolved. 

From  this  it  necessarily  results  that  until  an  appeal  is  taken  and  an 
injunction  issued  by  a lower  court  held  improper,  the  determination 
of  the  lower  court  is  controlling.  Even  though  the  determination  of 
the  lower  court  that  an  injunction  should  have  issued  is  reversed  on 
appeal,  it  is  still  true  that  the  punishment  for  contempt  will  hold.  That 
is,  even  though  an  injunction  was  illegally  issued  by  a lower  court, 
the  violator  of  such  an  injunction  is  punishable  for  contempt  so  long 
as  the  injunction  remains  in  force  and  the  action  of  the  lower  court 
is  not  reversed. 

What  has  just  been  stated  is  the  law  of  this  country  with  respect 
to  contempts,  and  the  doctrine  of  this  matter  has  recently  been  stated 
in  a very  clear  manner  by  the  supreme  court  of  Illinois  in  the  case 
of  Lyon  & Healy  v.  The  Piano,  Organ  and  Musical  Instrument  Work- 
ers’ International  Union.2  In  this  case  Chief  Justice  Dunn  said: 

“Where  a court  has  before  it  a party  complainant  asking  that  an 
injunction  issue  on  a bill,  stating  a case  belonging  to  a class  within  the 
general  equity  jurisdiction  of  the  court,  and  also  the  party  against 
whom  the  injunction  is  asked,  the  court  has  jurisdiction  to  decide 
whether  an  injunction  ought  to  issue  and  the  character  of  the  injunc- 
tion, and  should  the  court  err  in  ordering  an  injunction  to  issue  when 
one  ought  not  to  issue  or  in  ordering  an  injunction  broader  in  its  terms 
than  is  justified  by  the  bill,  its  decree  will  be  reversed,  but  the  error 
will  be  no  defense  to  an  attachment  for  contempt  for  violating  the 
injunction.  The  error  does  not  deprive  the  court  of  its  jurisdiction 
and  the  decree  is  binding  upon  the  defendant  until  vacated  or  set  aside. 
A party  may  refuse  to  obey  an  order  where  the  court  had  no  juris- 
diction to  make  it,  but  not  on  the  ground  that  it  was  erroneously  made. 
An  order  made  in  the  exercise  of  jurisdiction,  though  erroneous,  must 
be  obeyed  until  modified  or  set  aside  by  the  court  making  it  or  re- 
versed by  an  appellate  court.” 

In  this  case  Justices  Carter  and  Stone  specially  concurred,  saying: 
“Under  repeated  decisions  of  this  court  on  similar,  if  not  identical 
questions  raised  here,  we  think  the  judgment  of  the  lower  court  on 
this,  a collateral  attack,  must  be  confirmed.  We  reach  this  conclusion 
with  reluctance,  because  we  are  firmly  convinced  that  the  injunc- 
tion order  entered  was  entirely  too  sweeping  in  its  provisions, 
particularly  the  provision  enjoining  appellants,  or  those  associating 
with  them,  from  interfering  or  attempting  to  hinder  the  appellee 
from  carrying  on  its  business  in  the  usual  and  ordinary  way. 

Furthermore,  we  are  disposed  to  think  that  the  restrain- 
ing order  is  too  broad  in  its  phraseology  in  reference  to  picketing 
appellee’s  place  of  business,  but.  in  view  of  our  conclusion  that 
these  questions  were  not  raised  in  a direct  proceeding  and  cannot 


2 289  111.  176  (1919). 


1157 


be  raised  in  a collateral  attack  on  a decretal  order,  we  do  not 
deem  it  necessary  to  discuss  this  question  at  length.” 

Two  justices  dissented  without  opinion  from  the  decision  of 
the  court.  Three  justices  concurred  in  Chief  Justice  Dunn’s  state- 
ment that  the  court  having  jurisdiction  to  issue  the  injunction, 
a punishment  for  contempt  could  not  be  relieved  from.  The  two 
other  justices  agreed  with  Chief  Justice  Dunn’s  conclusions,  but 
took  occasion  to  say  that  the  injunction  in  this  case  was  an  im- 
proper one. 

If  an  injunction  has  been  issued,  and  an  appeal  is  taken  from 
a punishment  for  contempt  for  the  violation  of  the  injunction,  it 
is  proper,  however,  for  the  supreme  court  to  pass  upon  the  ques- 
tion as  to  whether  the  act  sought  to  be  punished  as  a contempt  was 
actually  a violation  of  the  injunction;  and  if  the  act  is  held  not 
to  have  been  a violation  of  the  injunction,  the  party  will  on  appeal 
be  relieved  from  punishment.3 


Conditions  under  which  injunctions  will  be  issued  in  labor, 
cases.  The  law  as  to  this  matter  laid  down  by  the  Illinois  supreme 
court  is  unsettled,  and  this  statement  may  also  be  made  regarding 
the  law  of  substantially  all  of  the  other  states.  The  law  with 
respect  to  labor  controversies  is  one  of  relatively  recent  develop- 
ment, and,  as  in  all  cases  where  the  law  is  being  first  developed,  a 
great  deal  of  uncertainty  exists.  In  labor  controversies,  injunc- 
tions will  issue  to  prevent  actions  which  the  court  may  regard 
as  unlawful,  but  not  for  the  purpose  of  enjoining  the  actual  ces- 
sation of  work.  What  will  be  regarded  as  unlawful  depends,  in 
the  present  unsettled  state  of  the  law,  primarily  upon  what  the 
court  may  regard  in  a particular  case  as  improper  conduct.  The 
law  of  injunctions  in  labor  cases  revolves  primarily  upon  the  no- 
tion that  an  act  which  is  lawful  if  done  by  one  person  may  become 
coercive  and  unlawful  if  done  by  a number  in  combination.  In  the 
application  of  this  general  principle  the  tendenev  of  the  courts 
is  to  adopt  the  element  of  motive  as  the  controlling  one,  and  to 
regard  the  conduct  by  a group  of  persons  as  lawful  if  such  conduct 
does  not  unduly  interfere  with  the  rights  of  others  and  if  the  pur- 
pose of  the  conduct  is  primarilv  to  benefit  the  group  which  is 
acting  rather  than  that  of  injuring  others.  However,  the  deter- 
mination as  to  whether  the  motive  is  proper  or  improper  rests 
in  the  first  instance  with  the  court  granting  the  injunction.  The 
supreme  court  of  Illinois  has  passed  upon  a number  of  matters, 
and  it  may  be  proper  to  indicate  here  the  results  in  the  more 
important  cases.  In  the  case  of  O’Brien  v.  People4  the  court  said 
through  Justice  Wilkin: 

“No  person  or  combination  of  persons  can  illegally,  by  direct 
or  indirect  means,  obstruct  or  interfere  with  another  in  the  con- 


3 Illinois  Malleable  Iron  Company  v.  Michalelc,  279  111.  221. 

<216  111.  354  (1905|. 


1158 


duct  of  his  lawful  business  and  any  attempt  to  compel  an  indi- 
vidual, firm  or  corporation  to  execute  an  agreement  to  conduct  his 
or  its  business . through  certain  agencies  or  by  a particular  class 
of  employes  is  not  only  unlawful  and  actionable  but  is  an  inter- 
ference with  the  exercise  of  the  highest  civil  right  . . . there 

can  be  no  doubt  that  any  attempt  to  coerce  the  Kellogg  Switch- 
board and  Supply  Company  into  signing  said  agreements  by  threats 
to  order  a strike  was  unlawful.  It  was  violative  of  the  clear  legal 
right  of  the  company  and  was  unjust  and  oppressive  as  to  those 
who  did  not  belong  to  the  labor  organizations.” 

This  decision,  while  involving  other  matters,  was  based  primarily 
upon  the  view  that  a strike  for  the  closed  shop  is  unlawful,  and  that 
actions  in  connection  therewith,  even  though  otherwise  lawful,  might 
be  enjoined.  The  case  of  Barnes  v.  Chicago  Typographical  Union5  is 
directly  in  line  with  the  view  expressed  in  the  case  of  O’Brien  v.  People. 
In  the  Barnes  case,  however,  there  are  two  dissents  as  against  one  dis- 
sent in  the  O’Brien  case.  The  case  of  Franklin  Union  No.  4 v.  People6 
is  also  in  line  with  the  two  cases  just  referred  to,  the  court  there  saying : 

“It  will  be  readily  conceded  by  all  that  labor  has  the  right  to  or- 
ganize as  well  as  capital,  and  that  the  members  of  Franklin  Union  No. 
4 had  the  same  legal  right  to  organize  said  union  as  the  members  of  the 
Chicago  Typothetae  had  to  form  that  association,  and  that  the  mem- 
bers of  Franklin  Union  No.  4 had  the  legal  right  to  quit  the  employ- 
ment, either  singly  or  in  a body,  of  the  members  of  said  association, 
with  or  without  cause,  if  they  saw  fit,  without  rendering  themselves 
amenable  to  the  charge  of  conspiracy  and  that  the  courts  would  not 
have  been  authorized  to  enjoin  them  from  so  doing,  even  though  their 
leaving  the  employment  of  the  members  of  the  association  involved  a 
breach  of  the  contract.  While  such  is  the  law,  it  is  equally  true  that 
upon  the  members  of  Franklin  Union  No.  4,  either  singly  or  in  a body, 
leaving  the  employment  of  the  Chicago  Typothetae,  the  members  of 
the  association  had  the  right  to  employ  other  persons  in  their  places, 
and  when  Franklin  Union  No.  4,  its  officers  and  members,  agreed  to- 
gether that  by  calling  a strike  and  by  force,  threats,  intimidation  and 
picketing  they  would  prevent  the  members  of  said  association  from  em- 
ploying other  persons  in  their  places,  then  they  entered  into  an  un- 
lawful undertaking,  the  carrying  into  effect  of  which  might  be  en- 
joined by  a court  of  equity.” 

These  earlier  cases,  just  referred  to,  proceed  upon  the  assumption 
that  employes  had  no  specific  interest  in  the  undertaking  in  which  they 
were  employed,  and  that  once  they  decided  to  leave  such  employment, 
they  might  do  so,  either  singly  or  as  a group,  but  that  they  could  not 
leave  for  the  purpose  of  coercing  the  employer,  and  that  leaving  or 
threatening  to  leave  for  the  purpose  of  obtaining  a closed  shop  was  il- 
legal. The  court,  however,  in  the  case  of  Kemp  v.  Division  No.  241, 
Amalgamated  Association  of  Street  Electric  Railway  Employes  of 
America,7  took  a different  view  with  respect  to  this  matter.  In  this 


5 232  111.  425  (1908). 

• 220  111.  355. 

7 255  111.  213  (1912) 


1159 


case,  the  court  was  divided,  three  judges  concurring  in  one  opinion, 
Justice  Carter  specially  concurring,  and  three  judges  dissenting.  The 
court  through  Justice  Cook  said: 

“No  contract  rights  being  involved,  the  Union  employes  had  a 
right  to  quit  the  'service  of  the  railway  company  either  singly  or  in  a 
body,  for  any  reason  they  chose,  or  for  no  reason  at  all.  If  the  only 
purpose  of  the  union  employes  was  to  quit  the  service  and  permanently 
sever  their  connection  with  their  employer,  appellees  would  in  no  wise 
be  damaged  and  could  have  no  grounds  for  injunctive  relief.  The  bill 
discloses,  however,  that  this  was  not  the  only  purpose  of  the  members 
of  the  union.  They  did  not  propose  absolutely  to  sever  their  connec- 
tion with  their  employer,  but  by  means  of  a strike  to  withdraw  tem- 
porarily their  service,  and  then  by  such  means  as  might  be  proper  and 
permissible  seek  to  induce  their  employer  to  accede  to  their  demands 
and  reinstate  them  in  the  service  under  .the  conditions  they  sought  to 
impose.  By  thus  combining  it  becomes  necessary  to  inquire  whether 
the  purpose  of  the  combination  was  a lawful  one  . . . Neither 

can  it  be  said  that  any  actual  malice  has  been  disclosed  towards  the 
appellees  or  an  intent  to  commit  a wrongful  or  harmful  act  against 
them.  No  threats  are  made  and  no  violations  threatened.  The  mem- 
bers of  the  union  have  simply  said  to  their  employer  that  they  will  not 
longer  work  with  men  who  are  not  members  of  their  organization  and 
that  they  will  withdraw  from  their  employment  and  use  such  proper 
means  as  they  may  to  secure  employment  under  the  desired  conditions. 
While  this  is  not  a combination  on  the  part  of  the  union  employes  to 
maintain  their  present  scale  of  wages,  to  secure  an  advance  in  the  rate 
of  wages  or  to  procure  shorter  hours  of  employment,  all  of  which  have 
been  universally  held  to  be  proper  and  lawful  objects  of  a strike,  it 
cannot  be  said  that  this  is  not  a demand  for  better  conditions  and  a 
legitimate  object  for  them  to  seek  to  attain  by  means  of  a strike.” 

Justice  Carter  in  a concurring  opinion  said: 

“In  my  judgment,  union  workmen,  not  bound  by  contract,  who  in- 
form their  employer  that  they  will  strike  unless  he  discharge  non-union 
workmen  in  the  same  line  of  employment,  should  be  held  to  be  merely 
dictating  the  terms  of  their  own  employment;  that  it  is  not  unlawful 
for  members  of  a labor  union  to  seek  by  peaceful  means  to  induce  those 
engaged  in  the  same  occupation  to  become  members  of  such  union,  and 
as  a means  to  that  end  to  refuse  to  allow  union  laborers  to  work  in  the 
same  line  of  employment  in  a place  where  non-union  laborers  are  em- 
ployed. The  proposed  purpose  of  the  strike  not  being  unlawful,  it 
necessarily  follows  that  an  injunction  should  not  issue  as  prayed  for  in 
the  bill.” 

Three  judges  vigorously  dissented  from  the  views  presented 
by  Justice  Cook  and  Justice  Carter,  urging  that  the  law  had  been 
differently  established  in  this  state  and  that  “the  right  of  every 
laborer  to  dispose  of  his  labor  as  he  may  choose  for  the  support  of 
himself  and  those  dependent  upon  him  is  as  sacred  as  the  right 
to  carry  on  any  lawful  business  or  any  other  lawful  right  of  a citizen. 
Governments  and  courts  would  be  useless  if  they  failed  to  pro 
tect  the  laborer  in  the  enjoyment  of  such  a right.  It  can  only 


1160 


be  lawfully  interfered  with  by  one  in  the  exercise  of  an  equal  or 
superior  right  and  thus  the  ground  upon  which  the  right  to  obtain 
the  place  of  another  in  direct  and  lawful  competition  is  sustained. 
The  right  of  a labor  organization  to  enforce  a closed  shop  for  the 
mere  purpose  of  strengthening  the  labor  organization  in  future 
contests  with  the  employer  is  not  competition  and  is  not  of  the 
same  character  or  equal  to  the  right  of  the  individual  to  dispose 
of  his  labor  at  his  own  will.,, 

Whatever  view  may  be  taken  regarding  the  minority  state- 
ment, it  seems  fairly  clear  from  the  cases  that  the  minority  is  right 
in  saying  that  the  Kemp  case  alters  the  previous  attitude  of  the 
supreme  court  of  Illinois.  It  may  therefore  be  said  that  the  su- 
preme court  of  Illinois  has  in  the  case  just  referred  to  departed 
from  its  earlier  attitude  with  respect  to  the  lawfulness  of  a strike 
for  the  closed  shop. 

Other  matters  with  respect  to  the  lawfulness  of  strikes  and 
the  lawfulness  of  actions  in  connection  therewith  have  not  been 
so  fully  passed  upon  by  the  supreme  court  of  Illinois.  In  the 
recent  case  of  Lyon  & Healy  v.  The  Piano,  Organ  and  Musical 
Instrument  Workers’  International  Union,8  the  injunction  involved 
is  said  to  have  been  substantially  like  the  decree  of  injunction  in- 
volved in  Barnes  & Company  v.  Chicago  Typographical  Union. 
In  spite  of  this  fact,  however,  two  justices  dissented  without 
opinion  from  a judgment  sustaining  a punishment  for  contempt 
in  violating  the  injunction,  and  two  other  judges  specially  concurr- 
ing took  a view  squarely  that  the  injunction  was  too  sweeping  in 
its  provisions  “particularly  the  provision  enjoining  the  appellants 
or  those  associating  with  them  from  interfering  or  attempting  to 
hinder  the  appellee  from  carrying  on  its  business  in  the  usual 
and  ordinary  way.  It  is  difficult  to  conceive  of  a strike  without 
some  damage  occurring  to  the  parties  in  the  dispute.  E>ven  if  the 
strikers  commit  no  physical  violence,  the  striking  employes  always 
plan  and  intend  to  deprive  the  employers  of  their  labor  and  in  so 
doing  they  necessarily  unsettle  the  work  of  the  employers  and 
in  most  instances  in  so  doing  thereby  cause  damage.  . 
Furthermore,  we  are  disposed  to  think  that  the  restraining  order 
is  too  broad  in  its  phraseology  in  reference  to  picketing  appellees’ 
place  of  business.  . . 

A strike  for  the  closed  shop  is  regarded  as  lawful  in  some 
states  of  the  union  and  as  unlawful  in  others.  Although  the  matter 
of  injunctions  in  labor  cases  is  now  pretty  fully  covered  by  fed- 
eral statutes  to  be  refqp-ed  to  in  this  article,  the  United  States 
supreme  court  in  recent  cases,  arising  before  these  statutes  were 
enacted  has  taken  a view  against  the  lawfulness  of  the  strike  for 
the  closed  shop,  Justice  Pitney  taking  for  the  United  States  su- 
preme court  very  much  the  same  view  which  he  had  earlier 
taken  as  a chancellor  in  New  Jersey.9 


9 Hitchrrian  Coal  & Coke  Co.  v.  Mitchell,  245  U.  S.  229;  Eagle  Glass  & Mfg. 
Co.  v.  Rowe,  245  U.  S.  275  (1917). 


1161 


There  seems  to  have  been  a tendency,  as  is  indicated  by  the 
attitude  of  the  Illinois,  supreme  court,  toward  regarding  the  strike 
for  the  closed  shop  as  lawful.  The  decisions  at  the  present  time 
are,  however,  opposed  to  the  lawfulness  of  a sympathetic  strike,  and 
there  is  a general  rule  now  well  recognized  that  it  is  unlawful  to 
cause  the  breach  of  existing  contracts,  such  rule  applying  to  an 
effort  to  bring  about  a breach  of  contract  between  employer  and 
employes,  as  well  as  to  the  breaches  of  other  contracts. 

If  a strike  be  regarded  as  unlawful,  the  problem  then  presents 
itself  as  to  what  actions  may  be  enjoined  in  connection  with  such 
a strike.  The  quitting  of  work  is  not  enjoinable,  even  though 
the  persons  quitting  work  are  under  contract.  This  matter  is  per- 
haps as  well  established  as  any  other  principle  of  American  law. 
However,  if  a strike  is  regarded  as  unlawful,  courts  in  this  coun- 
try have  enjoined  such  actions  in  connection  with  it  as  the  call- 
ing of  the  strike  by  labor  leaders  (that  is,  the  use  of  the  union 
organization  for  the  purpose  of  conducting  a strike)  ; the  payment 
of  strike  benefits  by  a union;  the  threat  to  strike  for  a purpose  re- 
garded as  unlawful ; peaceful  persuasion,  and  peaceful  picketing. 

However,  all  of  these  actions  are  not  regarded  as  proper 
even  when  a strike  itself  may  be  considered  lawful.  If  a strike 
is  considered  lawful,  it  is  certainly  possible  in  connection  with  it  to 
use  all  of  the  machinery  of  a union  organization,  and  to  pay  strike 
benefits.  Peaceful  persuasion  also  appears  to  be  lawful,  and  in 
some  states  peaceful  picketing  is  regarded  as  lawful,  although 
this  is  doubtful  in  Illinois  at  the  present  time.  In  Massachusetts 
it  has  been  held  unlawful  to  fine  members  for  refusing  to  strike, 
even  though  the  strike  itself  be  regarded  as  lawful.  The  secondary 
boycott,  either  in  connection  with  a strike  or  otherwise,  is  generally 
regarded  as  unlawful. 

It  will  be  noted  from  this  discussion  that  there  are  two  points 
at  issue : (1)  when  will  a strike  or  threat  to  strike  be  regarded  as 
unlawful,  and  the  use  of  the  machinery  of  organized  labor  be  sub- 
stantially forbidden  in  carrying  out  the  purposes  of  such  a strike, 
and  (2)  if  a strike  be  regarded  as  lawful,  what  instrumentalities 
for  the  conduct  of  that  strike  may  lawfully  be  used.  As  to  both 
of  these  matters  the  law  both  in  Illinois  and  in  the  other  states 
is  unsettled,  although  to  a large  extent  the  matter  has  been  settled 
by  federal  legislation,  which  is  quoted  in  full  in  this  discussion. 
This  legislation  has  largely  adopted  the  attitude  of  the  labor  organ- 
izations. 


Arguments  for  and  against  the  restriction  of  injunctions  in, 
labor  cases.  Those  opposed  to  the  restriction  of  injunctions  in 
labor  cases  urge  th&t  to  enact  such  a restriction  will  place  labor 
organizations  in  a preferred  position  with  respect  to  the  law,  and 
that  not  only  is  such  a preferred  position  unjustifiable,  but  that 
there  is  no  need  for  such  a position  in  order  to  protect  the  legiti- 


1162 


mate  interests  of  labor.  The  Kemp  case  in  255  111.,  is  cited  as  one 
in  which  the  court  went  far  to  sustain  the  legality  of  acts  of  organ- 
ized labor. 

Those  who  urge  the  need  for  a restriction  of  the  use  of  injunc- 
tions in  labor  cases  allege  that  labor  is  not  asking  for  a special 
privilege  or  a preferred  position,  but  for  relief  from  a situation 
which  operates  unequally  with  respect  to  labor.  Their  position 
is  based  largely  upon  the  fact  that  the  law  with  respect  to  labor 
controversies  is  in  an  unsettled  condition,  as  the  law  always  is  in 
any  rapidly  growing  field  of  the  law.  Their  arguments  may  be  sub- 
stantially summarized  as  follows : 

(1)  The  purpose  of  an  injunction  is  primarily  that  of  maintain- 
ing existing  rights,  but  they  assert  that  the  injunction  in  labor  cases 
normally  settles  the  matter  in  controversy  as  the  result  of  an  in- 
formal hearing,  or  as  the  result  of  action  without  notice  to  the 
laborers,  In  their  view,  an  injunction  is  issued  by  the  judge  of  a 
lower  court  (the  judge  often  selected  by  the  applicant  for  the 
injunction)  and  the  injunction  when  issued  operates  to  defeat  the 
laborers  in  their  controversy,  and  has  this  effect  before  the  injunc- 
tion can  be  dissolved  as  the  result  of  an  appeal  to  a higher  court. 
Their  point  is  that,  inasmuch  as  the  laborers  must  bring  pressure 
to  bear  upon  their  employer  promptly  or  fail,  an  injunction  issued 
by  the  lower  court,  if  it  is  improper,  will  actually  defeat  the  labor- 
ers before  the  injunction  can  be  removed.  In  the  Lyon  & Healy 
case,  which  has  been  referred  to  above,  the  majority  of  the  court  did 
not  say  that  the  injunction  was  improper,  although  two  specially 
concurring  judges  said  this,  and  two  judges  dissented.  Whether 
the  dissenting  judges  were  of  the  opinion  that  the  injunction  was 
improper,  is,  of  course,  a matter  of  conjecture.  However,  if  it 
were  true  that  the  four  judges  were  of  opinion  that  the  injunction 
issued  by  the  lower  court  was  improper,  the  labor  leaders  urge 
that  the  effect  of  the  improper  injunction  would  have  been  accom- 
plished as  against  the  laborers  before  it  could  have  been  dissolved. 

(2)  It  is  also  urged  by  those  favoring  a restriction  of  the 
use  of  injunctions  in  labor  cases  that,  even  if  the  injunction  be 
proper  on  its  face,  a judge  may  punish  acts  which  he  regards  as 
violating  the  injunction,  but  which  on  appeal  may  not  be  so  re- 
garded. That  is,  it  is  urged  that  even  though  the  injunction  were 
fair  upon  its  face,  the  judge  of  the  trial  court  may  actually  coerce 
people  into  doing  things  which  they  had  a right  to  do,  even  though 
these  things  are  not  properly  within  the  scope  of  the  matters  prohib- 
ited by  the  injunction.  The  case  of  Illinois  Malleable  Iron  Com- 
pany v.  Michalek10  is  cited  on  this  point. 

(3)  On  the  basis  of  the  points  made  above,  those  advocating 
the  restriction  of  the  use  of  the  injunction  in  labor  controversies 
urge  that  the  present  situation  places  a really  final  decision  in 
the  inferior  court  acting  often  in  an  ex  parte  proceeding.  They  also 


10  279  111.  221  (1917). 


1163 


charge  that  inferior  courts  sometimes  act  purposely  against  the 
decisions  of  the  higher  state  courts  in  such  matters.11 

The  chief  actual  difficulty,  as  may  be  indicated  from  the  pre- 
vious discussion,  is  the  unsettled  state  of  the  law  as  to  labor  con- 
troversies, and  the  point  really  contended  for  by  labor  organiza- 
tions and  their  supporters  is  either  a more  definite  statement  of  the 
law  or  a limitation  upon  the  machinery  through  which  the  law 
is  applied  by  the  courts.  The  law  with  respect  to  a number  of 
these  matters  has  been  settled  in  England,  largely  in  the  manner 
desired  by  labor  organizations,  by  the  Trade  Disputes  Act  of 
1906,  which  is  regarded  as-of  sufficient  importance  to  be  given 
here : 

1.  “An  act  done  in  pursuance  of  an  agreement  or  combination 
by  two  or  more  persons  shall,  if  done  in  contemplation  or  further- 
ance of  a trade  dispute,  not  be  actionable  unless  the  act,  if  done 
without  any  such  agreement  or  combination,  would  be  actionable.” 

2.  Lawful  in  connection  with  a trade  dispute  “to  attend  at 
or  near  a house  or  place  where  a person  resides  or  works  or  carries 
on  business  or  happens  to  be,  if  they  so  attend  merely  for  the 
purpose  of  peacefully  obtaining  or  communicating  information, 
or  of  peacefully  persuading  any  person  to  work  or  abstain  from 
working.” 

3.  “An  act  done  by  a person  in  contemplation  or  furtherance 
of  a trade  dispute  shall  not  be  actionable  on  the  ground  only  that 
it  induces  some  other  person  to  break  a contract  of  employment 
or  that  it  is  an  interference  with  the  trade,  business  or  employ- 
ment of  some  other  person,  or  with  the  right  of  some  other  person 
to  dispose  of  his  capital  or  his  labor  as  he  wills.” 

4.  “An  action  against  a trade  union,  whether  of  workmen  or 
masters,  or  against  any  member  or  officials  thereof  on  behalf  of  them- 
selves and  all  other  members  of  the  trade  union  in  respect  of  any  tor- 
tious act  alleged  to  have  been  committed  by  or  on  behalf  of  the  trade 
union,  shall  not  be  entertained  by  any  court.”12 


Proposed  legislation  in  Illinois  and  legislation  in  other  states. 

An  effort  has  been  made  at  several  sessions  of  the  Illinois  general  as- 
sembly to  obtain  legislation,  exempting  labor  controversies  from  the 
application  of  an  injunction  and  providing  for  jury  trial  in  contempt 
cases.  In  1919  the  bills  proposed  in  the  Illinois  general  assembly  (house 
bills  26,  27  and  32)  sought  primarily  to  enact  as  applicable  to  judicial 
proceedings  in  Illinois  the  provisions  of  Sections  6,  20,  21  and  part  of 
Section  22  of  the  Clayton  Act,  the  full  text  of  which  is  given  below. 
That  is,  the  effort  was  being  made  in  this  state  to  apply  to  the  state 
courts  a rule  which  has  already  been  adopted  by  statute  with  reference 
to  the  federal  courts. 


11  As  an  instance  of  this,  the  case  of  Schwarcz  v.  International  Ladies’  Gar- 
ment Workers’  Union,  124  N.  Y.  Suppl.  968  (1910)  is  sometimes  cited. 

12  6 Edw.  VII,  Ch.  47  (1906). 


1164 


Both  before  and  after  the  enactment  of  the  Clayton  act  by  Con- 
gress, measures  to  accomplish  substantially  the  same  purposes  have 
been  enacted  by  state  legislatures.  Legislation  in  California  and  Massa- 
chusetts has  been  held  invalid  by  the  courts  of  those  states,  and  the  de- 
cisions are  commented  upon  in  a later  part  of  this  discussion.  The  leg- 
islature of  Montana  in  1913  enacted  that  an  injunction  should  not  be 
granted  “in  labor  disputes  under  any  other  or  different  circumstances 
or  conditions,  than  if  the  controversy  were  of  another  or  different 
character,  or  between  parties  neither  or  none  of  whom  were  laborers 
or  interested  in  labor  questions”  (Sec.  6121  as  amended  in  1913).  The 
Montana  court,  in  a liberal  decision  upon  a labor  controversy,  took  oc- 
casion to  say  that  this  legislation  adds  nothing  to  pre-existing  law. 
(Empire  Theatre  Co.  v.  Cloke,  53  Mont.  183,  1917.) 

The  legislature  of  Kansas  in  1913  enacted  a law,  the  substance  of 
which  is  similar  to  sections  17  to  20  of  the  Clayton  act.  (Kansas  Laws, 
1913,  Chap.  233.)  Apparently  the  validity  of  this  law  has  not  been  in- 
volved in  any  case  before  the  Supreme  Court  of  Kansas. 

Minnesota  legislation  of  1917  declares  labor  not  a commodity  or  an 
article  of  commerce,  and  forbids  the  use  of  injunctions  in  certain  cases, 
using  much  the  same  language  as  section  20  of  the  Clayton  act.  (Min- 
nesota session  laws,  1917,  Chap.  493.) 

Utah  in  1917  enacted  a law  which  declares  labor  not  a commodity 
or  an  article  of  commerce,  limits  the  use  of  injunctions  in  labor  cases, 
limits  the  penalties  for  contempts,  and  provides  for  jury  trial  in  con- 
tempt cases.  This  act  closely  parallels  sections  6,  20  and  22  of  the  Clay- 
ton act.  (Utah  session  laws,  1917  p.  210).  North  Dakota  in  1919 
enacted  a law  which  embodies  the  substance  of  section  20  of  the  Clay- 
ton act.  Anti-injunction  legislation  was  also  enacted  in  1919  by 
Oregon,  Washington  and  Wisconsin,  and  Iowa  exempted  labor  or- 
ganizations from  the  operation  of  the  anti-trust  laws. 

In  the  Massachusetts  constitutional  convention  proposals  with  re- 
spect to  this  subject  were  made  and  discussed,  but  were  rejected.  (De- 
bates in  the  Massachusetts  Constitutional  Convention,  1917-1918,  Vol. 
I,  pp.  1040-1165).  A full  report  on  labor  injunctions  in  Massachusetts 
will  be  found  in  the  forty-seventh  annual  report  on  the  Statistics  of 
Labor  (Boston,  1917). 

United  States  legislation.  After  a long  controversy,  congress 
enacted  in  1914  legislation  which  seeks  to  meet  the  objections  urged  by 
labor  organizations  to  the  use  of  injunctions  in  labor  cases.  This  con- 
gressional legislation  is  so  important  that  it  is  here  given  in  full.  The 
Clayton  Act,  of  which  these  provisions  form  a part,  deals  with  the  gen- 
eral subject  of  combinations  in  restraint  of  trade,  and  only  the  provi- 
sions are  here  given  which  are  appropriate  to  the  subject  now  under 
discussion. 

Sec.  6.  (Labor  organizations,  etc.,  not  within  provisions  of  act.) 
That  the  labor  of  a human  being  is  not  a commodity  or  article  of  com- 
merce. Nothing  contained  in  the  anti-trust  laws  shall  be  construed  to 
forbid  the  existence  and  operation  of  labor,  agricultural,  or  horticul- 
tural organizations,  instituted  for  the  purposes  of  mutual  help,  and  not 


1165 


having  capital  stock  or  conducted  for  profit,  or  to  forbid  or  restrain 
individual  members  of  such  organizations  from  lawfully  carrying  out 
the  legitimate  objects  thereof ; nor  shall  such  organizations,  or  the  mem- 
bers thereof,  be  held  or  construed  to  be  illegal  combinations  or  con- 
spiracies in  restraint  of  trade,  under  the  anti-trust  laws. 

Sec.  17.  (Preliminary  injunctions  and  temporary  restraining 
orders — notice.)  That  no  preliminary  injunction  shall  be  issued  with- 
out notice  to  the  opposite  party. 

No  temporary  restraining  order  shall  be  granted  without  notice  to 
the  opposite  party  unless  it  shall  clearly  appear  from  specific  facts 
shown  by  affidavit  or  by  the  verified  bill  that  immediate  and  irreparable 
injury,  loss  or  damage  will  result  to  the  applicant  before  notice  can  be 
served  and  a hearing  had  thereon.  Every  such  temporary  restraining 
order  shall  be  indorsed  with  the  date  and  hour  of  issuance,  shall  be 
forthwith  filed  in  the  clerk’s  office  and  entered  of  record,  shall  define 
the  injury  and  state  why  it  is  irreparable  and  why  the  order  was  granted 
without  notice,  and  shall  by  its  terms  expire  within  such  time  after  en- 
try, not  to  exceed  ten  days,  as  the  court  or  judge  may  fix,  unless  within 
the  time  so  fixed  the  order  is  extended  for  a like  period  for  good  cause 
shown,  and  the  reasons  for  such  extension  shall  be  entered  of  record. 
In  case  a temporary  restraining  order  shall  be  granted  without  notice 
in  the  contingency  specified,  the  matter  of  the  issuance  of  a preliminary 
injunction  shall  be  set  down  for  a hearing  at  the  earliest  possible  time 
and  shall  take  precedence  of  all  matters  except  older  matters  of  the 
same  character;  and  when  the  same  comes  up  for  hearing  the  party 
obtaining  the  temporary  restraining  order  shall  proceed  with  the  ap- 
plication for  a preliminary  injunction,  and  if  he  does  not  do  so  the 
court  shall  dissolve  the  temporary  restraining  order.  Upon  two  days’ 
notice  to  the  party  obtaining  such  temporary  restraining  order,  the 
opposite  party  may  appear  and  move  the  dissolution  or  modification  of 
the  order,  and  in  that  event  the  court  or  judge  shall  proceed  to  hear 
and  determine  the  motion  as  expeditiously  as  the  ends  of  justice  may 
require. 

Section  263  of  an  act  entitled  “An  Act  to  codify,  revise,  and  amend 
the  laws  relating  to  the  judiciary,”  approved  March  3d,  1911,  is  hereby 
repealed. 

Nothing  in  this  section  contained  shall  be  deemed  to  alter,  repeal, 
or  amend  Section  266  of  an  act  entitled  “An  Act  to  codify,  revise,  and 
amend  the  laws  relating  to  the  judiciary,”  approved  March  3d,  1911. 

Sec.  18.  (Restraining  orders  etc.,  security  as  condition  preced- 
ent.) That  except  as  otherwise  provided  in  Section  16  of  this  Act,  no 
restraining  order  or  interlocutory  order  of  injunction  shall  issue,  ex- 
cept the  giving  of  security  by  the  applicant  in  such  sum  as  the  court  or 
judge  may  deem  proper,  conditioned  upon  the  payment  of  such  costs 
and  damages  as  may  be  incurred  or  suffered  by  any  party  who  may  be 
found  to  have  been  wrongfully  enjoined  or  restrained  thereby. 

Sec.  19.  (Restraining  orders,  etc.— contents — bonding  only  upon 
whom.)  That  every  order  of  injunction  or  restraining  order  shall  set 
forth  the  reasons  for  the  issuance  of  the  same,  shall  be  specific  in  terms, 
and  shall  describe  in  reasonable  detail,  and  not  by  reference  to  the  bill 


1166 


of  complaint  or  other  document,  the  act  or  acts  sought  to  be  restrained, 
and  shall  be  binding  only  upon  the  parties  to  the  suit,  their  officers, 
agents,  servants,  employes  and  attorneys,  or  those  in  active  concert  or 
participating  with  them ; and  who  shall,  by  personal  service  or  other- 
wise, have  received  actual  notice  of  the  same. 

Sec.  20.  (Restraining  orders,  etc. — when  not  to  issue — what 
acts  not  to  be  prohibited.)  That  no  restraining  order  or  injunction  shall 
be  granted  by  any  court  of  the  United  States,  or  a judge  or  the  judges 
thereof,  in  any  case  between  an  employer  and  employee,  or  between 
employers  and  employes,  or  between  employes,  or  between  persons  em- 
ployed and  persons  seeking  employment,  involving,  or  growing  out  of, 
a dispute  concerning  terms  or  conditions  of  employment,  unless  neces- 
sary to  prevent  irreparable  injury  to  property,  or  to  a property  right, 
of  the  party  making  the  application  for  which  injury  there  is  no  ade- 
quate remedy  at  law,  and  such  property  or  property  right  must  be  de- 
scribed with  particularity  in  the  application,  which  must  be  in  writing 
and  sworn  to  by  the  applicant  or  by  his  agent  or  attorney. 

And  no  such  restraining  order  or  injunction  shall  pro- 
hibit any  person  or  persons,  whether  singly  or  in  concert,  from  ter- 
minating any  relation  of  employment,  or  from  ceasing  to 
perform  any  work  or  labor,  or  from  recommending,  ad- 
vising or  persuading  others  by  peaceful  means  so  to  do ; 
or  from  attending  at  any  place  where  any  such  person  or  persons  may 
lawfully  be,  for  the  purpose  of  peacefully  obtaining  or  communicating 
information,  or  from  peacefully  persuading  any  person  to  work  or  to 
abstain  from  working;  or  from  ceasing  to  patronize  or  to  employ  any 
party  to  such  dispute,  or  from  recommending,  advising,  or  persuading 
others  by  peaceful  and  lawful  means  so  to  do ; or  from  paying  or  giv- 
ing to,  or  withholding  from,  any  person  engaged  in  such  dispute,  any 
strike  benefits  or  other  moneys  or  things,  of  value,  or  from  peaceably 
assembling  in  a lawful  manner,  and  for  lawful  purposes ; or  from  doing 
any  act  or  thing  which  might  lawfully  be  done  in  the  absence  of  such 
dispute  by  any  party  thereto ; nor  shall  any  of  the  acts  specified  in  this 
paragraph  be  considered  or  held  to  be  violations  of  any  law  of  the 
United  States. 

Sec.  21.  (Contempt  constituting  criminal  offense  under  federal 
or  state  law.)  That  any  person  who  shall  willfully  disobey  any  lawful 
writ,  process,  order,  rule,  decree,  or  command  of  any  district  court  of 
the  United  States  or  any  court  of  the  District  of  Columbia  by  doing 
any  act  or  thing  therein,  or  thereby  forbidden  to  be  done  by  him,  if 
the  act  or  thing  so  done  by  him  be  of  such  character  as  to  constitute  also 
a criminal  offense  under  any  statute  of  the  United  States,  or  under  the 
laws  of  any  state  in  which  the  act  was  committed,  shall  be  proceeded 
against  for  his  said  contempt  as  hereinafter  provided. 

Sec.  22.  (Procedure  for  contempt — rule  to  show  cause — trial  and 
judgment — bail.)  That  whenever  it  shall  be  made  to  appear  to  any 
district  court  or  judge  thereof,  or  to  any  judge  therein  sitting,  by  the 
return  of  a proper  officer  on  lawful  process,  or  upon  the  affidavit  of 
some  credible  person,  or  by  information  filed  by  any  district  attorney, 
that  there  is  reasonable  ground  to  believe  that  any  person  has  been 


1167 


guilty  of  such  contempt,  the  court  or  judge  thereof,  or  any  judge, 
therein  sitting,  may  issue  a rule  requiring  the  said  person  so  charged 
to  show  cause  upon  a certain  day  why  he  should  not  be  punished  there- 
for, which  rule,  together  with  a copy  of  the  affidavit  or  information, 
shall  be  served  upon  the  person  charged,  with  sufficient  promptness 
to  enable  him  to  prepare  for  and  make  return  to  the  order  at  the  time 
fixed  therein.  If  upon  or  by  such  return,  in  the  judgment  of  the  court, 
the  alleged  contempt  be  not  sufficiently  purged,  a trial  shall  be  directed 
at  a time  and  place  fixed  by  the  court : Provided,  however,  that  if  the 
accused,  being  a natural  person,  fail  or  refuse  to  make  return  to  the 
rule  to  show  cause,  an  attachment  may  issue  against  his  person  to  com- 
pel an  answer,  and  in  case  of  his  continued  failure  or  refusal,  or  if 
for  any  reason  it  be  impracticable  to  dispose  of  the  matter  on  the  re- 
turn day,  he  may  be  required  to  give  reasonable  bail  for  his  attend- 
ance at  the  trial  and  his  submission  to  the  final  judgment  of  the  court. 
Where  the  accused  is  a body  corporate,  an  attachment  for  the  seques- 
tration of  its  property  may  be  issued  upon  like  refusal  or  failure  to 
answer. 

In  all  cases  within  the  purview  of  this  Act  such  trial  may  be  by 
the  court,  or.  upon  demand  of  the  accused,  by  a jury;  in  which  latter 
event  the  court  may  impanel  a jury  from  the  jurors  then  in  attendance, 
or  the  court  or  the  judge  thereof  in  chambers  may  cause  a sufficient 
number  of  jurors  to  be  selected  and  summoned,  as  provided  by  law,  to 
attend  at  the  time  and  place  of  trial,  at  which  time  a jury  shall  be  se- 
lected and  impaneled  as  upon  a trial  for  misdemeanor ; and  such  trial 
shall  conform,  as  near  as  may  be,  to  the  practice  in  criminal  cases  prose- 
cuted by  indictment  or  upon  information. 

If  the  accused  be  found  guilty,  judgment  shall  be  entered  ac- 
cordingly, prescribing  the  punishment,  either  by  fine  or  imprison- 
ment, or  both,  in  the  discretion  of  the  court.  Such  fine  shall  be  paid 
to  the  United  States  or  to  the  complainant  or  other  party  injured  by 
the  act  constituting  the  contempt,  or  may,  where  more  than  one  is  so 
damaged,  be  divided  or  apportioned  among  them  as  the  court  may 
direct,  but  in  no  case  shall  the  fine  to  be  paid  to  the  United  States 
exceed,  in  case  the  accused  is  a natural  person,  the  sum  of  $1,000, 
nor  shall  such  imprisonment  exceed  the  term  of  six  months:  Pro- 

vided, that  in  any  Case  the  court  or  a judge  thereof  may,  for  good 
cause  shown,  by  affidavit  or  proof  taken  in  open  court  or  before  such 
judge  and  filed  with  the  papers  in  the  case,  dispense  with  the  rule  to 
show  cause,  and  may  issue  an  attachment  for  the  arrest  of  the  person 
charged  with  contempt ; in  which  event  such  person,  when  arrested, 
shall  be  brought  before  such  a court  or  a judge  thereof  without  unneces- 
sary delay  and  shall  be  admitted  to  bail  in  a reasonable  penalty  for  his 
appearance  to  answer  to  the  charge  or  for  trial  for  the  contempt ; and 
thereafter  the  proceedings  shall  be  the  same  as  provided  herein  in 
case  the  rule  had  issued  in  the  first  instance. 

Sec.  23.  (Conviction  of  contempt  reviewed  on  writ  of  error — 
stay  and  bail.)  That  the  evidence  taken  upon  the  trial  of  any  persons 
so  accused  may  be.  preserved  by  bill  of  exceptions,  and  any  judgment 
of  conviction  may  be  reviewed  upon  writ  of  error  in  all  respects  as 


1168 


now  provided  by  law  in  criminal  cases,  and  may  be  affirmed,  reversed, 
or  modified  as  justice  may  require.  Upon  the  granting  of  such  writ 
of  error,  execution  of  judgment  shall  be  stayed,  and  the  accused,  if 
thereby  sentenced  to  imprisonment,  shall  be  admitted  to  bail  in  such 
reasonable  sum  as  may  be  required  by  the  court,  or  by  any  justice, 
or  any  judge  of  any  district  court  of  the  United  States  or  any  court 
of  the  District  of  Columbia. 

Sec.  24.  (Certain  contempts  excluded  from  operation  of  Act.) 
That  nothing  herein  contained  shall  be  construed  to  relate  to  con- 
tempts committed  in  the  presence  of  the  court,  or  so  near  thereto  as  to 
obstruct  the  administration  of  justice,  nor  to  contempts  committed 
in  disobedience  of  any  lawful  writ,  process,  order,  rule,  decree,  or 
command  entered  in  any  suit  or  action  brought  or  prosecuted  in  the 
name  of,  or  on  behalf  of,  the  United  States,  but  the  same,  and  all  other 
cases  of  contempt  not  specifically  embraced  within  section  21  of  this 
Act,  may  be  punished  in  conformity  to  the  usages  at  law  and  in  equity 
now  prevailing. 

Sec.  25.  (One  year  limitation  for  contempt  proceeding — no  bar 
to  criminal  prosecution — pending  proceedings.)  That  no  proceeding 
for  contempt  shall  be  instituted  against  any  person  unless  begun  within 
one  year  from  the  date  of  the  act  complained  of ; nor  shall  any  such 
proceeding  be  a bar  to  any  criminal  prosecution  for  the  same  act  or 
acts ; but  nothing  herein  contained  shall  affect  any  proceedings  in 
contempt  pending  at  the  time  of  the  passing  of  this  Act. 

The  Sundry  Civil  Appropriation  Act  of  March  3,  1915,  ch.  75, 
sec.  1,  38  Stat.  L.  866,  made  an  appropriation  for  the  enforcement  of 
the  anti-trust  laws,  and  contained  a proviso,  as  did  similar  acts  for 
preceding  years,  as  follows : “That  no  part  of  this  money  shall  be 
spent  in  the ‘prosecution  of  any  organization  or  individual  for  enter- 
ing into  any  combination  or  agreement  having  in  view  the  increasing 
of  wages,  shortening  of  hours  or  bettering  the  conditions  of  labor, 
or  for  any  act  done  in  furtherance  thereof,  not  in  itself  unlawful : 
Provided  further,  that  no  part  of  this  appropriation  shall  be  expended 
for  the  prosecution  of  producers  of  farm  products  and  associations  of 
farmers  who  cooperate  and  organize  in  an  effort  to  and  for  the  pur- 
pose to  obtain  and  maintain  a fair  and  reasonable  price  for  their 
products.”13 

This  federal  legislation,  of  course,  restricts  the  federal  courts  in 
Illinois,  but  has  no  effect  whatever  upon  the  state  courts,  and  an  un- 
successful effort  was  made  in  1917  and  1919  to  enact  for  Illinois,  as 
applicable  to  the  state  courts,  statutory  provisions  which  embodied  a 
part  of  the  provisions  just  quoted  above. 


Constitutionality  of  proposed  legislation.  If  it  were  desired  to 
obtain  in  Illinois  legislation  similar  to  that  enacted  by  congress,  a 
question  would  present  itself  as  to  whether  such  legislation  if  enacted 


13  38  U.  S.  statutes  at  I.arg-e,  730  (Oct.  15,  1914). 


1160 


is  likely  to  be  upheld  by  the  state  supreme  court.  In  this  connection, 
it  should  be  borne  in  mind  that  the  apparently  accepted  constitution- 
ality of  the  federal  legislation  does  not  settle  the  question  as  to  the 
state  constitutionality  of  similar  legislation  if  it  were  enacted  by  the 
Illinois  general  assembly.  Two  issues  present  themselves  here  with 
respect  to  this  matter:  (1)  All  inferior  federal  courts  are  established 

by  congressional  legislation,  and  their  jurisdiction  is  fixed  by  such 
legislation.  It  is  commonly  held  that  the  power  ol  a legislative  body 
to  regulate  matters  such  as  those  having  to  do  with  the  issuance  of  in- 
junctions and  the  punishment  of  contempts  is  larger  where  the  legis- 
lation deals  with  courts  not  created  by  a constitution  than  where  it 
deals  with  courts  established  by  a constitutional  provision.  The  Illi- 
nois trial  courts  are  now  provided  for  by  state  constitutional  pro- 
vision. (2)  The  fact  that  the  United  States  supreme  court  may  hold 
the  provisions  of  the  Clayton  Act  not  violative  of  “due  process  of 
law”  and  “equal  protection  of  the  laws”,  as  guaranteed  in  the  federal 
constitution,  does  not  necessarily  mean  that  the  supreme  court  of  Illi- 
nois would  take  the  same  view  in  interpreting  substantially  identical 
provisions  of  the,  constitution  of  Illinois.  It  should  here  be  borne  in 
mind  that  the  state  supreme  court  is  the  final  judicial  arbiter  as  to  the 
meaning  of  the  state  constitution,  and  that  it  has  not  been  uncommon 
for  state  supreme  courts  to  construe  state  constitutional  language 
more  strictly  than  the  identical  language  in  the  federal  constitution 
has  been  construed  by  the  United  States  supreme  court.  Further 
comment  upon  this  matter  will  be  found  in  the  pamphlet  dealing  with 
the  legislative  department. 

With  respect  to  the  problem  of  the  constitutionality  for  Illinois 
of  such  legislation  as  the  Clayton  Act,  several  points  present  them- 
selves which  will  be  discussed  under  the  three  succeeding  headings. 


Giving  a preferred  status  to  labor.  Several  cases  have  arisen 
upon  state  legislation  exempting  certain  types  of  cases  from  general 
legal  rules.  California  in  1903  enacted  a statute  in  the  following 
terms : 

“No  agreement,  combination  or  contract  by  or  between  two  or 
more  persons  to  do  or  procure  to  be  done,  or  not  to  do  or  procure  not 
to  be  done,  any  act  in  contemplation  or  furtherance  of  any  trade  dis- 
pute between  employers  and  employes  . . . shall  be  deemed 

criminal,  nor  shall  those  engaged  therein  be  indictable,  or  otherwise 
punishable  for  the  crime  of  conspiracy,  if  such  an  act  committed  by 
one  person  would  not  be  punishable  as  a crime,  nor  shall  such  agree- 
ment, combination  or  contract  be  considered  as  in  restraint  of  trade 
or  commerce,  nor  shall  any  restraining  order  or  injunction  be  issued 
with  relation  thereo.”14 

The  Act  further  provided  that  nothing  therein  should  be  con- 
strued as  authorizing  force  or  violence  or  threats  thereof.  In  the 


14  Cal.  Stat.  1903,  p.  289. 


1170 


case  of  Goldberg  v.  Stablemen’s  Union15  and  Pierce  v.  Stable- 
men’s Union.10  this  act  was  held  unconstitutional  as  denying  equal 
protection  of  the  laws  and  as  interfering  with  the  constitutional 
right  to  acquire,  possess,  enjoy  and  protect  property. 

In  1911  the  Massachusetts  senate  asked  the  opinion  of  the 
supreme  judicial  court  of  that  state  as  to  the  constitutionality  of  a 
proposed  exemption  of  trade  unions  and  of  associations  of  employ- 
ers from  liability  for  tortious  acts  alleged  to  have  been  committed 
by  or  on  behalf  of  such  a union  or  association.  The  supreme 
judicial  court  said  that  such  proposed  legislation  would  be  un- 
constitutional as  depriving  of  equal  protection  of  the  laws,  by  set- 
ting aside  a favored  few  and  by  discriminating  between  mem- 
bers and  non-members  of  unions  and  between  members  and  non- 
members of  employers’  associations. 

Plowever,  the  Massachusetts  general  court  in  1914  enacted  a 
statute,  the  substance  of  which  is  as  follows : The  statute  declared 
it  not  unlawful  to  enter  into  agreements  or  combinations  with  a 
view  to  lessening  hours  of  labor,  increasing  wages  or  bettering  con- 
ditions of  labor,  and  provided  that  no  injunction  should  be  granted 
in  cases  growing  out  of  disputes  concerning  the  terms  or  condi- 
tions of  employment  or  acts  done  in  pursuance  thereof  “unless 
such  order  or  injunction  be  necessary  to  prevent  irreparable  injury 
to  property  or  a property  right  of  the  party  making  the  application, 
for  which  there  is  no  adequate  remedy  at  law”.  It  also  declared 
that  the  right  to  enter  the  relation  of  employer  and  employe,  to 
change  that  relation,  to  assume  new  relations,  or  to  labor  as  an 
employe  shall  “be  held  and  construed  to  be  a personal  and  not  a 
property  right”;  and  that  in  cases  involving  the  violation  of  a 
contract  of  employment  “where  no  irreparable  damage  is  about  to 
be  committed  upon  the  property  or  property  right  of  either  [em- 
ployer or  employe],  no  injunction  shall  be  granted  but  the  parties 
shall  be  left  to  their  remedy  at  law”.  The  statute  further  provided 
that  there  should  be  no  criminal  liability  for  workmen  entering 
into  an  agreement  or  combination  with  a view  to  lessening  hours, 
increasing  wages  or  bettering  conditions  or  for  any  acts  done  in 
pursuance  thereof  “unless  such  act  is  in  itself  unlawful”.  It  will 
be  noted  that  this  legislation  in  part  covers  the  same  ground  as' 
the  English  Trade  Dispute  Act  of  1906  and  that  it  also  covers 
some  of  the  matters  dealt  with  by  the  terms  of  the  Clayton  Act. 

The  * validity  of  the  Massachusetts  legislation  of  1914  came 
before  the  supreme  judicial  court  of  Massachusetts  in  the  case  of 
Bogni  v.  Perotti.17  In  this  case  one  union  sought  an  injunction  to 
prevent  interference  by  another  union  with  its  members  obtaining 
work.  The  supreme  judicial  court  said  that  labor  is  property  as 
well  as  liberty,  and  that  the  legislative  body  could  not  remove 
it  from  judicial  protection  by  saying  that  it  was  not  so.  It  further 
said  that  “if  a laborer  must  stand  helpless  in  court  while  others 


15  149  Cal.  429  (1906). 

16  156  Cal.  74  (1909). 
”112  N.  E.  853  (1916). 


1171 


there  receive  protection  respecting  the  same  general  subject  which 
is  denied  to  him”,  there  is  a denial  of  due  process  of  law.  The  court 
agreed  that  the  equitable  jurisdiction  of  courts  was  largely  statu- 
tory, but  said  that  it  was  one  thing  to  affect  a general  scope  of 

equitable  remedies  and  a different'  one  to  admit  some  citizens  to 

have  an  equitable  remedy  while  denying  that  remedy  to  others. 

The  point  here  under  discussion  has  not  been  squarely  passed 
upon  by  the  supreme  court  of  Illinois,  but  a somewhat  similar  issue 
was  involved  in  several  cases  which  have  arisen  in  this  state.  In 
the  case  of  Gillespie  v.  People,18  the  supreme  court  said  that  it 
was  unconstitutional  to  make  it  a criminal  offense  for  an  em- 
ployer to  prevent  his  employes  from  joining  labor  unions  or  to 
.discharge  them  because  of  their  connection  with  labor  unions.19 

In  the  case  of  People  v.  Butler  Street  Foundry  Co.,20  the 
Illinois  supreme  court  held  unconstitutional  a provision  of  law 
which  contained  a proviso  that  “in  the  mining,  manufacture  or  pro- 
duction of  articles  of  merchandise,  the  cost  of  which  is  mainly 

made  up  of  wages,  it  shall  not  be  unlawful  for  persons,  firms  or 

corporations  doing  business  in  this  state  to  enter  into  joint  agree- 
ments of  any  sort,  the  principal  object  or  effect  of  which  is  to 
maintain  or  increase  wages.” 

In  the  case  of  Matthews  v.  People,21  the  supreme  court  held 
unconstitutional  a statutory  provision  prohibiting  superintendents 
of  free  employment  agencies  from  furnishing  workmen  or  lists  of 
workmen  to  employers  whose  men  were  on  strike  or  were  locked 
out. 

In  view  of  these  cases  and  of  other  utterances  by  the  supreme 
court  with  respect  to  the  matters  here  under  discussion,  it  seems 
unlikely  that  the  court  will  uphold  legislation  which  on  its  face 
seems  to  give  a preference  in  legal  treatment  to  labor  organiza- 
tions or  their  members.22 

Upon  legislation  making  a distinction  between  labor  organi- 
zations and  others,  the  case  of  Connolly  v.  Union  Sewer  Pipe 
Company23  was  cited  by  the  court  in  People  v.  Butler  Street  Foun- 
dry Company  as  decisive  of  the  issue  there  involved.  The  supreme 
court  of  the  United  States  in  the  Connolly  case  said  that  a dis- 
crimination by  anti-trust  legislation  in  favor  of  agricultural  pro- 
ducts or  live  stock  in  the  hands  of  the  producer  or  raiser  was 
unconstitutional  as  a denial  of  equal  protection  of  the  laws.  In 
the  later  case  of  International  Harvester  Company  v.  Missouri,24 
the  United  States  supreme  court  took  the  view  that  “whether  the 
Missouri  statute  should  have  stated  its  condemnation  on  restraints 
generally,  prohibiting  combined  action  for  any  purpose  to  every- 
body or  confined  it  as  the  statute  does  to  manufacturers  and  ven- 

18  188  111.  176  (1900). 

19  With  respect  to  this  matter  the  same  view  has  been  taken  by  the  United 
States  Supreme  Court  in  the  case  of  Coppage  v.  Kansas,  239  U.  S.  1 (1915). 

29  201  111.  236  (1903). 

21  202  111.  389  (1903). 

22  See  also  McChesney  v.  People,  200  111.  146  (1902)  and  City  of  Chicago  v 
Hulbert,  205  111.  346. 

23  1 84  U.  S.  540  (1902) 

24  234  U.  S.  199  (1914). 


1172 


dors  of  articles,  and  permitting  it  to  purchasers  of  such  articles; 
prohibiting  it  to  sellers  of  commodities  and  permitting  it  to 
sellers  of  services,  was  a matter  of  legislative  judgment;  and  we 
cannot  say  that  the  distinctions  made  are  palpably  arbitrary,  which 
we  have  seen  is  the  condition  of  judicial  review.  It  is  to  be  re- 
membered that  the  question  presented  is  of  the  power  of  the 
legislature,  not  the  policy  of  the  exercise  of  the  power.”  The 
statute  involved  in  this  case  had  been  held  by  the  Missouri  su- 
preme court  to  be  “limited  to  persons  and  corporations  dealing 
in  commodities  and  not  to  include  combination  of  persons  engaged 
in  labor  pursuits.”  In  view  of  this  decision  of  the  United  States 
supreme  court,  it  would  seem  that  the  Connolly  case  is  no  longer 
of  weight,  although  the  court  in  the  International  Harvester  case 
expressly  said  that  it  was  not  overruling  the  Connolly  case. 


Limitation  of  the  use  of  injunctions.  The  question  as  to  the 
limitation  of  the  use  of  injunctions  in  labor  cases  has  not  pre- 
sented itself  very  definitely  except  in  the  case  of  Bogni  v.  Perotti, 
and  the  parts  of  that  decision  bearing  upon  this  matter  have  been 
referred  to  under  the  preceding  heading.  It  has  already  been 
suggested  that  the  inferior  federal  courts  are  creations  of  con- 
gress, and  that  action  by  the  United  States  supreme  court  up- 
holding the  provisions  of  the  Clayton  Act  would  not  necessarily 
be  decisive  as  to  similar  legislation  in  a state  where  the  inferior 
courts  were  created  by  constitutional  provision. 


Punishment  of  contempts.  Where  a court  is  created  by  the 
constitution,  the  view  has  been  generally  taken  that  the  power  to 
punish  for  contempts  is  an  inherent  judicial  power.  This  does 
not  necessarily  mean  that  the  legislature  has  no  authority  whatever 
with  respect  to  the  matter  of  contempts,  but  it  does  pretty  clearly 
imply  that  the  presumption  will  be  against  any  action  by  the  legis- 
lature with  respect  to  this  matter.  In  a Virginia  case  which  was 
decided  in  1899, 25  an  act  was  involved  which  divided  contempts  into 
two  classes,  direct  and  indirect,  and  permitted  the  accused  to 
obtain  trial  by  jury  in  indirect  contempts,  the  jury  to  fix  the  punish- 
ment by  verdict.  The  contempt  inwdved  in  the  case  was  indirect 
and  a jury  was  denied.  The  highest  Virginia  court  upheld  the 
action  denying  jury  trial  and  said:  “the  power  to  punish  for  con- 
tempts is  inherent  in  courts,  and  is  conferred  upon  them  by  the 
very  act  of  their  creation.”  The  court  concluded  that  “in  the 
courts  created  by  the  constitution  there  is  inherent  power  of  self- 
defense  and  self-preservation ; that  this  power  may  be  regulated 
but  cannot  be  destroyed  or  so  far  diminished  as  to  be  rendered 


25  Carter’s  Case,  96  Va.  791  (1899). 


1173 


ineffectual  by  legislative  enactment ; that  it  is  a power  necessarily 
resident  in  and  to  be  exercised  by  the  court  itself  and  that  the  vice 
of  an  act  which  seeks  to  deprive  the  court  of  this  inherent  power 
is  not  cured  by  providing  for  its  exercise  by  jury  . . This 

case  reviews  somewhat  at  length  previous  decisions  upon  the  mat- 
ter. 

The  Virginia  constitution  of  1902  provides  in  Section  63  that 
“the  general  assembly  may  regulate  the  exercise  by  courts  of  the 
right  to  punish  for  contempt”.  In  Burdett’s  case,26  which  arose 
after  the  constitution  of  1902  had  come  into  operation  the  court 
takes  the  same  view  as  in  Carter’s  case,  but  apparently  the  legis- 
lature of  Virginia  had  not  acted  since  the  constitutional  provision 
o'f  1902  had  come  into  effect. 

In  the  Territory  of  Oklahoma  in  1901,  a case  came  into  the 
court  involving  the  constitutionality  of  legislation  limiting  the 
punishment  of  indirect  contempts  and  providing  for  jury  trial  in 
such  cases.  The  court  in  the  case  of  Smith  v.  Speed27  said  that 
the  courts  had  derived  their  jurisdiction  from  act  of  congress,  that 
their  power  to  punish  for  contempt  was  inherent  and  that  the 
legislative  act  was  bad.  In  1907  Oklahoma  adopted  a constitutional 
provision  expressly  directing  the  legislature  to  “pass  laws  defining 
contempts  and  regulating  the  proceedings  and  punishment  in  mat- 
ters of  contempt.  Provided,  that  any  person  accused  of  violating 
or  disobeying,  when  not  in  the  presence  or  hearing  of  the  court 
or  a judge  sitting  as  such,  any  order  of  injunction  or  restraint, 
made  or  entered  by  any  court  or  judge  of  the  state  shall,  before 
penalty  or  punishment  is  imposed,  be  entitled  to  a trial  by  jury 
as  to  the  guilt  or  innocence  of  the  accused.  In  no  case  shall  a 
penalty  or  punishment  be  imposed  for  contempt  until  an  oppor- 
tunity to  be  heard  is  given.” 

The  supreme  court  of  Missouri  in  two  important  cases  has 
held  invalid  legislative  acts  seeking  to  limit  the  conduct  which 
may  be  punished  as  contempt  and  also  seeking  to  limit 
the  amount  of  punishment  for  contempt.28  In  the  latter  of 
these  cases  the  provision  was  involved  which  limited  the 
punishment  for  contempt  to  a $50  fine  or  ten  days’  im- 
prisonment or  both,  or  to  thirty  days’  imprisonment  in  case 
fine  was  not  paid.  The  decision  holding  this  provision  bad 
was  by  a bare  majority  of  the  court,  three  of  the  seven 
judges  vigorously  dissenting  on  the  ground  that  a statute  regu- 
lating the  punishment  of  contempts  within  reasonable  limits  was 
valid  and  should  be  sustained. 

A statute  regarding  jury  trials  in  contempt  cases  has  been 
expressly  sustained  in  Kentucky.  The  Kentucky  statute  provided 
that  “a  court  shall  not,  for  contempt,  impose  upon  the  offender  a 
fine  exceeding  $30,  or  imprison  him  exceeding  thirty  hours,  with- 
out the  intervention  of  a jury.”29  The  Missouri  statute  held  un- 

26  103  Va.  838  (1904). 

27  11  Okla.  95  (1901). 

28  State  v.  Shepherd,  177  Mo.  208  (1903);  C.  B.  & Q.  By.  Co.  v.  Gildersleeve, 
219  Mo.  170  (1909). 

^Richards  v.  Commonwealth,  149  Ky.  497  (1911). 


1174 


constitutional  expressly  exempted  from  its  terms  certain  matters 
with  respect  to  the  enforcement  of  judgments  of  courts,  and  the 
Kentucky  court  took  the  view  that  similar  matters  were  intended 
to  be  exempted  by  the  statute  upheld  in  that  state. 

The  constitutions  of  Georgia,  and  Louisiana,  contain  pro- 
visions that  the  power  of  courts  to  punish  for  contempts  may  be 
limited  by  law.  The  supreme  court  of  Georgia,  however,  has 
taken  a view  in  the  construction  of  this  constitutional  provision 
which  seems  to  read  substantially  all  meaning  out  of  it.30 

The  Arkansas  constitution  contains  a provision  that  “the  general 
assembly  shall  have  power  to  regulate  by  law  the  punishment  of  con- 
tempts not  committed  in  the  presence  or  hearing  of  the  courts  or  in 
disobedience  of  process.” 

Courts  are  likely  to  take  a narrow  view  with  respect  to  consti- 
tutional provisions  limiting  their  power  to  punish  for  contempts.  At- 
tention should,  however,  be  called  to  the  fact  that  cases  regarding 
these  matters  have  more  often  arisen  with  respect  to  newspaper  criti- 
cisms of  the  courts  than  with  respect  to  labor  controversies. 

A rejected  constitutional  proposal  in  Ohio  in  1912  provided  that 
“laws  may  be  passed  prescribing  rules  and  regulations  for  the  con- 
duct of  cases  and  business  in  the  courts  of  the  state,  regulating  the 
proceedings  in  contempt  and  limiting  the  power  to  punish  for  con- 
tempt. No  order  of  injunction  shall  issue  in  any  controversy  involving 
the  employment  of  labor,  except  to  preserve  physical  property  from 
injury  or  destruction;  and  all  persons  charged  in  contempt  proceed- 
ings with  the  violation  of  an  injunction  issued  in  said  controversy 
shall,  upon  demand,  be  granted  a trial  by  jury  as  in  criminal  cases.” 
The  voters  of  Colorado  in  1912  rejected  a proposed  constitutional 
amendment  allowing  jury  trial  in  cases  of  constructive  contempt. 


Conclusions.  As  has  been  suggested,  the  fact  that  there  is 
federal  legislation,  and  the  further  fact  that  there  has  been  a decision 
by  the  United  States  supreme  court  which  would  seem  to  support  the 
validity  of  legislation  such  as  that  here  under  discussion,  is  not  con- 
clusive as  to  the  state,  and  the  weight  of  authority  in  other  states  is 
probably  now  against  such  legislation,  in  the  absence  of  constitutional 
provision,  although  there  is  a tendency  to  recognize  the  legislature 
as  having  power  to  enact  such  legislation.  Even  if  the  legislation  had 
been  squarely  upheld  by  the  United  States  supreme  court  as  not  de- 
priving of  due  process  of  law  nor  denying  the  equal  protection  of  the 
laws,  such  decision,  as  has  already  been  suggested,  would  not  be 
decisive  as  to  the  constitutional  question  in  the  states. 

The  problem  here  under  discussion  relates  to  two  things  : (1)  the 

substance  of  the  law  with  respect  to  labor  controversies,  and  (2)  the 
machinery  for  the  enforcing  of  such  law.  In  such  legislation  as  the 
Clayton  Act,  the  two  matters  are  united,  and  certainty  as  to  the  sub- 


30  Bradley  v.  State,  111  Ga.  168  (1900). 


1175 


stance  of  the  law  is  pretty  clearly  more  desirable  than  is  a limitation 
of  the  machinery  through  which  that  law  is  administered.  If  any  pro- 
vision is  to  be  placed  in  the  constitution  of  Illinois  regarding  labor 
controversies,  care  should  be  taken  so  to  phrase  the  provision  that  it 
will  not  prevent  other  forms  of  action  desired  in  the  future. 


1176 


CORPORATIONS,  RAILROADS,  WAREHOUSES,  PUBLIC 
UTILITIES,  BANKING  AND  INSURANCE. 


This  chapter  seeks  to  discuss  briefly  the  various  provisions  of  the 
present  constitution  regarding  corporations  in  general,  and  regarding 
specific  types  of  businesses  which  are  affected  with  a public  interest. 


Corporations.  With  respect  to  corporations,  there  are  several 
sections  of  the  present  constitution  which  may  raise  issues  for  con- 
sideration by  the  constitutional  convention.  Section  2 of  Article  11 
is  probably  obsolete,  and  may  with  safety  be  omitted. 

Section  3 of  Article  11  raises  several  definite  problems  as  to  con- 
stitutional policy.  Cumulative  voting  is  expressly  provided  for  in  this 
section,  and  with  respect  to  this  matter  the  constitutional  provision  is 
self-executing.  If  it  is  desired  to  retain  cumulative  voting  for  cor- 
porations, the  provision  should  remain  unchanged. 

The  issue  also  presents  itself  under  this  section  as  to  the  organiza- 
tion of  cooperative  corporations.  Illinois  has  a law  for  the  organi- 
zation of  co-operative  companies,  and  this  law  forbids  any  one  person 
to  own  more  than  five  shares  of  stock  in  one  company.  This  statu- 
tory provision  was  inserted  for  the  purpose  of  preventing  any  one  in- 
dividual from  controlling  a co-operative  company.  It  would  have 
been  constitutionally  impossible  to  permit  individuals  to  own  a larger 
number  of  shares  of  stock  than  they  should  be  permitted  to  vote.  A 
number  of  states  have  copied  the  Illinois  constitutional  provision 
regarding  cumulative  voting  of  shares  of  stock  in  corporations  (Cali- 
fornia, Idaho,  Kentucky,  Mississippi,  Missouri,  Montana,  Nebraska, 
North  Dakota,  Pennsylvania,  South  Dakota,  West  Virginia).  How- 
ever, California  expressly  provides  that  in  co-operative  societies  mem- 
bers may  vote  in  the  manner  prescribed  by  law;  and  North  Dakota 
in  1918  adopted  a constitutional  amendment  under  which  “any  co- 
operative corporation  may  adopt  by-laws  limiting  the  voting  power  of 
its  stockholders.”  The  Wyoming  constitution  contains  a section  which 
requires  the  legislature  to  “provide  by  suitable  legislation  for  the 
organization  of  mutual  and  co-operative  associations  or  corporations.” 
It  is,  of  course,  impossible  under  the  Illinois  constitutional  language 
to  limit  voting  power  or  to  vary  voting  power  as  among  different  types 
of  stock  in  corporations. 

Article  11,  section  14  is  unnecessary,  and  in  the  view  of  the 
Supreme  Court  was  merely  inserted  out  of  excess  of  caution.  The  right 
of  eminent  domain  could  be  used  for  the  condemnation  of  the  prop- 
erty and  franchises  of  corporations  irrespective  of  this  provision, 
although  the  removal  of  the  provision  might  be  construed  to  involve 
implications  against  legislative  power  in  this  respect.  This  matter 


1177 


will  be  found  further  discussed  in  Bulletin  No.  7 on  eminent  domain 
and  excess  condemnation. 

Some  states  have  provided  in  detail  by  their  constitutions  for 
corporation  commissions,  which  not  only  control  the  organization  of 
corporations,  but  also  supervise  public  utilities.  This  is  true  of  the 
constitutions  of  Virginia,  Oklahoma,  Arizona,  New  Mexico  and 
Louisiana.  Virginia  and  Oklahoma,  however,  expressly  provided 
that  constitutional  provisions  with  respect  to  corporation  commissions 
should  be  subject  to  legislative  amendment  after  a certain  fixed  date. 


Railroads.  A full  review  of  the  present  constitutional  pro- 
visions regarding  railroads  will  be  found  in  an  article  by  Mr.  Rush 
C.  Butler  in  the  proceedings  of  the  Illinois  State  Bar  Association  for 
1917.  Mr.  Butler  sums  up  his  conclusions  as  follows:  “Briefly  to 

summarize,  it  is  my  conviction  that  the  constitution  of  the  State  of 
Illinois  should  be  entirely  silent  on  the  subject  of  railroad  regulation. 
In  the  absence  of  specific  constitutional  provisions,  the  legislature  of 
the  state  will  be  vested  with  the  full  remaining  power  of  the  people 
of  a state  to  regulate  intrastate  commerce.” 

As  Mr.  Butler  says,  some  of  the  provisions  of  the  constitution 
with  respect  to  railroads  are  obsolete,  and  some  of  them  are  useless. 
For  example,  such  a provision  as  Article  11,  section  13,  providing  that 
“no  railroad  corporation  shall  issue  any  stock  or  bonds,  except  for 
money,  labor  or  property  actually  received  and  applied  to  the  pur- 
poses for  which  such  corporation  was  created,”  is  practically  unen- 
forcible,  and  has  necessarily  been  construed  in  such  a way  as  to  be 
substantially  useless.  It  may  probably  be  said  that  all  of  Article  11, 
sections  9 to  15  is  either  obsolete  or  merely  repeats  matters  which  it 
would  be  within  the  power  of  the  General  Assembly  to  accomplish. 

In  connection  with  railroads,  attention  should  also  be  called  to 
the  provision  of  Article  2,  section  13  that  “the  fee  of  land  taken  for 
railroad  tracks,  without  the  consent  of  the  owners  thereof,  shall  re- 
main in  such  owners,  subject  to  the  use  for  which  it  was  taken.” 
This  constitutional  provision  has  been  discussed  in  Bulletin  No.  7 on 
eminent  domain  and  excess  condemnation.  It  has  made  difficult  the 
carrying  out  of  city  plans  which  require  the  relocation  of  railroad 
tracks. 


Warehouses.  The  provisions  of  the  constitution  regarding 
warehouses  (just  as  the  provisions  with  respect  to  railroads)  were 
placed  in  the  constitution  when  the  lavement  for  the  regulation  of 
railroads  and  warehouses  was  in  its  infancy.  The  constitutional  pro- 
visions in  Illinois  do  not  add  to  the  power  which  would  otherwise 
belong  to  the  General  Assembly,  and  have  served  little  purpose.  How- 
ever, here  as  with  respect  to  other  provisions  of  the  constitution,  care 
should  be  taken  to  say  that  omissions  of  existing  provisions,  if  made, 


1178 


are  not  to  be  construed  as  reducing  the  legislative  power.  Provisions 
as  to  warehouses  will  be  found  in  the  constitutions  of  North  Dakota, 
Oklahoma  and  Kentucky.  Perhaps  attention  should  also  be  called  to 
recent  constitutional  amendments  which  have  extended  the  state  power 
in  South  Dakota  and  North  Dakota,  so  that  the  states  themselves  may 
embark  upon  the  enterprise  of  operating  grain  elevators. 


Public  utilities.  Railroads  and  warehouses  of  course  come 
within  the  term  “public  utilities,”  but  it  is  desirable  to  comment  briefly 
upon  the  effect  of  Article  11,  section  4 of  the  constitution,  which  pro- 
vides that  “no  law  shall  be  passed  by  the  General  Assembly  granting 
the  right  to  construct  and  operate  a street  railroad  within  any  city, 
town  or  incorporated  village  without  requiring  the  consent  of  the 
local  authorities  having  the  control  of  the  street  or  highway  pro- 
posed to  be  occupied  by  such  street  railroad.”  The  Supreme  Court 
has  said  that  this  section  “merely  means  that  the  constitution  has  con- 
ferred upon  the  city,  power  to  determine  whether  street  railways  shall 
be  operated  upon  its  streets,  and  if  so,  upon  what  streets.  To  this 
extent,  and  no  further,  the  constitution  has  committed  to  the  city  the 
control  of  the  operation  of  street  railways  in  its  streets.”1 

This  section  of  the  constitution,  therefore,  means  nothing  more 
than  that  the  city  determines  in  the  first  instance  whether  a street 
railway  shall  operate  upon  its  streets.  After  the  city  has  made  this 
determination,  the  state  power  over  the  operation  of  the  street  rail- 
road is  complete. 

Municipal  home  rule  as  to  public  utilities,  and  municipal  owner- 
ship and  operation  of  public  utilities  present  two  of  the  most  serious 
problems  which  will  come  before  the  constitutional  convention.  The 
power  of  the  General  Assembly  to  grant  municipal  home  rule  with  re- 
spect to  public  utilities  and  to  authorize  cities  to  own  and  operate  their 
public  utilities  is  probably  now  unquestioned,  and  the  General  Assembly 
has  authorized  municipal  ownership  and  operation  to  a very  large  ex- 
tent. The  supervision  over  public  utilities  is  in  substantially  complete 
form  in  the  hands  of  state  authorities  under  present  legislation. 
Efforts  have  been  made  for  some  years  to  obtain  legislation  which 
might  enlarge  supervision  of  cities  over  their  local  public  utilities. 

With  respect  to  municipal  ownership  of  public  utilities,  the  pri- 
mary constitutional  question  is  that  of  debt  limits.  Under  existing 
municipal  debt  limits,  it  is  impossible  for  the  city  of  Chicago,  and 
for  many  other  cities,  to  acquire  the  ownership  of  their  local  public 
utilities.  This  matter  will  be  found  fully  discussed  in  the  chapter 
dealing  with  debt  limits,  which/appears  in  Bulletin  No.  4,  on  state 
and  local  finance,  and  in  Bulletin  No.  6,  dealing  with  municipal  home 
rule. 


1 City  of  Chicago  v.  O’Connell,  217  111.  561  (1917),  recently  affirmed  by  the 
United  States  Supreme  Court. 


1179 


Banks.  With  respect  to  banks,  several  issues  will  present 
themselves  to  the  constitutional  convention.  Perhaps  the  most  import- 
ant issue  likely  to  present  itself  is  that  of  farm  loans.  Under  the 
terms  of  the  present  constitution,  it  is  impossible  for  the  state  to  em- 
bark in  any  way  upon  farm  loan  enterprises,  and  an  effort  will  be 
made  to  obtain  authority  for  such  enterprises.  The  subject  of  farm 
loans  will  be  found  fully  discussed  in  Bulletin  No.  13,  on  farm  tenancy 
and  rural  credit. 

Another  question  will  present  itself  with  respect  to  Article  11, 
section  5 of  the  constitution  as  to  whether  the  provision  for  a popular 
referendum  shall  remain  with  respect  to  banking  legislation.  The 
present  provision  has  come  to  be  a formality,  and  banking  laws  are 
approved  by  the  people  almost  as  a matter  of  course.  The  requirements 
for  a referendum  upon  bank  legislation  came  into  constitutions  in  the 
main  before  the  Civil  War,  largely  as  the  result  of  unfortunate  state 
experiences  with  banking,  and  it  may  be  urged  that  such  provisions  are 
no  longer  needed.  Michigan,  Minnesota,  and  Wisconsin  now  provide 
for  the  enactment  of  banking  legislation  by  a two-thirds  vote  in  each 
of  the  two  houses. 

Article  11,  section  6 prescribes  a double  liability  for  stockholders 
in  banks,  and  some  discussion  may  present  itself  with  respect  to  this 
liability.  It  should  be  noted,  however,  that  the  double  liability  of  bank 
stock  with  respect  to  state  banks,  is  the  same  as  the  liability  by  federal 
legislation  for  federal  national  banks,  and  that  there  has,  as  yet,  been  no 
tendency  to  remove  such  liability  from  the  constitutions  which  contain 
provisions  of  this  character. 

Attention  may  be  called  to  the  fact  that  the  banking  provisions  of 
the  constitution  contains  details  regarding  banks  of  issue.  There  have 
been  no  banks  of  issue  in  the  state  since  the  Civil  War,  and  this  pro- 
vision was  inserted  in  the  constitution  of  1870  in  order  to  provide 
for  the  contingency  that  Congress  might  remove  the  federal  tax  upon 
state  bank  note  issues.  This  contingency  is  not  likely  to  arise,  and 
for  this  reason  the  removal  of  these  provisions  may  be  suggested. 


Insurance.  The  constitution  of  Illinois  contains  no  provisions 
regarding  insurance.  Within  recent  years,  provisions  have  come  into 
some  state  constitutions  with  respect  to  insurance,  although  such  pro- 
visions have  added  nothing  to  the  general  legislative  power  for  the 
regulation  of  this  industry.  It  is  possible,  however,  that  the  proposal 
may  be  made  to  embody  into  the  constitution  provisions  regarding 
the  regulation  of  insurance. 


1180 


VIII.  CANALS  AND  INTERNAL  IMPROVEMENTS. 


There  are  a number  of  provisions  in  the  present  constitution  of 
Illinois  which  prevent  the  state’s  engaging  either  directly  or  indirectly 
in  various  projects  of  internal  improvement.  Some  of  these  provisions 
were  first  introduced  in  1848,  because  of  the  disastrous  experience 
which  the  state  had  had  with  internal  improvement  projects  previous 
to  that  date.  Constitutional  provisions  introduced  in  1848  were  pri- 
marily directed  against  state  activities  in  fields  of  internal  improve- 
ments. To  these  provisions  were  added  in  1870  provisions  intended 
to  prevent  municipalities  of  the  state  from  loaning  their  credit  or 
becoming  interested  in  railroads  and  other  projects.  Constitutional 
debt  limits  upon  municipal  corporations  were  also  imposed  for  the 
same  purpose,  and  a limitation  upon  the  taxing  power  of  counties. 

Article  IV,  Section  18,  of  the  constitution  forbids  the  incurring  of 
a debt  by  the  state  in  excess  of  $250,000,  without  a vote  of  the  people, 
and  for  the  approval  of  the  proposal  to  incur  such  a debt  the  measure 
must  receive  “a  majority  of  the  votes  cast  for  members  of  the  general 
assembly”. 

Article  IV,  Section  20,  provides  that  “the  state  shall  never  pay, 
assume  or  become  responsible  for  the  debts  or  liabilities  of  or  in  any 
manner  give,  loan  or  extend  its  credit  to,  or  in  aid  of,  any  public  or 
other  corporation,  association  or  individual”. 

Section  12  of  Article  IX  forbids  the  incurring  of  indebtedness  in 
the  aggregate  exceeding  five  per  cent  of  the  value  of  the  taxable  prop- 
erty of  any  county,  city,  township,  school  district  or  other  municipal 
corporation,  and  requires  that  at  the  time  of  incurring  any  indebted-- 
ness  provision  shall  be  made  for  the  collection  of  a direct  annual  tax 
sufficient  to  pay  the  interest  on  such  debt  as  it  falls  due  and  to  discharge 
the  principal  within  twenty  years. 

Article  IX,  Section  8 limits  the  aggregate  taxes  of  counties  to 
seventy-five  cents  on  the  one  hundred  dollars  valuation,  unless  author- 
ized by  a vote  of  the  people  of  the  county. 

The  constitutional  convention  of  1869-70  submitted  to  the  people 
a separate  section  which  provided  that  “no  county,  city,  town,  township 
or  other  municipality  shall  ever  become  subscriber  to  the  capital  stock 
of  any  railroad  or  private  corporation,  or  make  donation  to  or  loan  its 
credit  in  aid  of  such  corporation :”  This  separate  section  was  adopted 
by  the  people. 

A separate  section  was  also  submitted  to  and  adopted  by  the  peo- 
ple of  Illinois  in  1870  providing  that  “the  Illinois  and  Michigan  canal, 
or  other  canal  or  waterway  owned  by  the  state  shall  never  be  sold  or 
leased  until  the  specific  proposition  for  the  sale  cr  lease  thereof  shall 
first  have  been  submitted  to  a vote  of  the  people  of  the  state  at  a gen- 
eral election,  and  have  been  approved  by  a majority  of  all  the  votes 
polled  at  such  election.  The  General  Assembly  shall  never  loan  the 
credit  of  the  state  or  make  appropriations  from  the  treasury  thereof, 
in  aid  of  railroads  or  canals ; Provided,  that  any  surplus  earnings  of 
any  canal,  waterway  or  water  power,  may  be  appropriated  or  pledged 


1181 


for  its  enlargement  or  extension.”  The  project  for  a canal  connect- 
ing the  waters  of  Lake  Michigan  and  those  of  the  Illinois  River  took 
form  almost  as  soon  as  Illinois  was  admitted  as  a state.  In  1822  the 
United  States  government  made  the  first  grant  of  land  to  the  state  for 
canal  purposes.  In  1848  the  Illinois  and  Michigan  canal  was  opened 
to  navigation.  The  total  cost  of  the  canal  was  approximately  $6,500,000. 
From  the  time  the  canal  was  open  until  1871  the  title  to  the  canal  was 
vested  in  a board  of  trustees  who  managed  the  waterway  for  the  bene- 
fit of  its  creditors.  The  canal  had  a prosperous  career  during  this 
period,  and  in  1871  all  the  creditors  were  paid,  the  trust  was  dissolved 
and  a balance  of  approximately  $96,000,  was  paid  over  to  the  state.1 

The  provision  against  leasing  or  selling  the  canal  was  inserted  in 
the  constitution  of  1870  primarily  for  the  purpose  of  preventing  rail- 
roads from  securing  the  canal  and  reducing  competition.  The  provi- 
sion forbidding  appropriation  of  money  by  the  general  assembly  in  aid 
of  canals  was  inserted  to  prevent  the  canal  from  becoming  a burden 
upon  the  state  in  case  its  expenses  should  exceed  its  revenues.  The 
canal  soon  ceased  to  be  prosperous  and  the  general  assembly  fell  into 
the  practice  of  making  appropriations  from  the  state  treasury  to  cover 
deficits.  In  1904  the  constitutionality  of  such  appropriations  came  be- 
fore the  supreme  court  in  the  case  of  Burke  v.  Snively2  and  the  court 
said : “We  are  of  the  opinion  that  the  true  meaning  of  the  constitu- 

tional provision  with  reference  to  the  canal  is  that  the  legislature  should 
have  power  to  operate  it  to  the  extent,  and  to  the  extent  only,  that  the 
income  of  the  canal  would  defray  the  expenses  of  operation,  mainte- 
nance and  preservation,  and  that  no  moneys  shall  be  appropriated  from 
the  treasury  of  the  state  in  aid  of  the  operation,  maintenance  or  preser- 
vation thereof,  and  that  if  the  earnings  of  the  canal  produced  a surplus 
appropriations  of  such  surplus  might  be  made  to  aid  in  the  enlargement 
or  extension  of  the  canal  should  the  legislature  deem  it  wise  to  so  ap- 
propriate such  surplus”.  A review  of  the  cases  involving  the  separate 
section  on  canals  will  be  found  in  the  Annotated  Constitution. 

In  1908  the  separate  canal  section  was  amended  by  inserting  the 
word  “maintenance”  in  the  last  clause  of  the  original  section  after  the 
word  “enlargement”,  and  by  making  express  provision  for  the  con- 
struction of  a deep  waterway  or  canal  from  the  present  water  power 
plant  of  the  sanitary  district  of  Chicago  at  or  near  Lockport,  to  a point 
in  the  Illinois  River  at  or  near  Utica,  and  bonds  to  an  amount  not  to 
exceed  $20,000,000,  were  authorized  for  this  purpose.  Legislation  of 
1915  authorized  the  construction  of  the  canal,  but  no  action  was  taken 
under  this  legislation,  and  the  work  of  construction  is  being  undertaken 
under  legislation  of  1919. 

Under  the  terms  of  Article  IV,  Section  18,  of  the  constitution  the 
general  assembly  enacted  legislation  in  1917  for  a $60,000,000  bond  is- 
sue for  a system  of  hard  roads  and  the  people  approved  the  bond  issue 
at  the  election  of  1918.  Legislation  of  1919  also  made  further  provi- 
sions regarding  the  use  of  money  for  the  system  of  hard  roads. 

1 Putnam,  J.  W.,  Illinois  and  Michigan  Canal,  A Study  in  Economic  History. 

Chicago  Historical  Society’s  collections,  Volume  10.  1918. 

2 208  111.  328. 


The  statements  just  made  with  respect  to  the  deep  waterway  and 
the  system  of  hard  roads  indicate  that  the  people  of  Illinois  are  now 
embarking  upon  two  large  projects  of  internal  improvements.  There 
has  been  a similar  development  in  other  states,  and  a number  of  con- 
stitutional amendments  have  expressly  authorized  bond  issues  for  road 
construction,  or  have  loosened  constitutional  restrictions  as  to  state 
debt  limits  so  as  to  permit  undertakings  by  the  state  which  would 
previously  not  have  been  permitted.  A review  of  some  of  the  new  de- 
velopments with  respect  to  state  enterprises  will  be  found  in  Bulletin 
No.  1,  pages  44-45. 

The  existing  constitutional  provisions  in  Illinois  are  clearly  not 
so  rigid  as  to  prevent  the  undertaking  of  projects  of  internal  improve- 
ments, if  the  people  definitely  desire  that  certain  projects  should  be 
undertaken.  However,  attention  should  be  called  to  the  fact  that  the 
$60,000,000  bond  issue  for  good  roads  was  authorized  under  Article 
IV,  Section  18  of  the  constitution,  which  requires  a popular  vote  of  a 
majority  of  those  voting  for  members  of  the  general  assembly; 
whereas  the  $20,000,000  bond  issue  for  the  deep  waterway  required  a 
constitutional  amendment  with  a majority  of  all  of  those  voting  in  a 
general  election.  If  it  is  desired  that  projects  of  internal  improve- 
ment be  undertaken  in  the  future,  subject  only  to  popular  approval,  it 
may  be  desirable  that  the  methods  of  popular  approval  be  made  uni- 
form with  respect  to  the  matter.  The  problem  will  also  present  itself  of 
the  relationship  of  the  Illinois  and  Michigan  canal  to  other  projects  of 
internal  improvement,  and  in  this  connection  the  question  may  be 
raised  as  to  whether  the  present  constitutional  provisions  as  to  the  Illi- 
nois and  Michigan  canal  may  not  be  unduly  restrictive  as  to  the  opera- 
tion of  that  canal  in  connection  with  the  larger  deep  waterway. 

There  is  probably  no  desire  now  that  municipal  corporations  be 
authorized  to  loan  their  credit  to  railroads  or  other  private  corpora- 
tions. However  there  is  some  demand  for  constitutional  provisions 
which  will  make  it  possible  for  municipalities  to  own  their  local  public 
utilities,  and  an  effort  will  be  made  to  obtain  an  alteration  of  the  muni- 
cipal debt  limit  so  as  to  permit  the  accomplishment  of  such  a purpose. 
The  problem  of  municipal  ownership  of  public  utilities  will  be  found 
discussed  in  Bulletin  No.  4 where  there  is  a chapter  upon  debt  limita- 
tions, and  in  Bulletin  No.  6 which  is  devoted  to  municipal  home  rule. 
A full  review  of  the  judicial  decisions  bearing  upon  the  application  of 
the  municipal  debt  limit  will  be  found  in  the  Annotated  Constitution. 


1183 


IX.  ILLINOIS  CENTRAL  RAILROAD. 


Historical  account  of  the  Illinois  Central  provision.  The  Illi- 
nois Central  railroad  was  chartered  in  1851.  Whenever  the  charter 
lines  of  the  road  crossed  land  owned  by  the  state,  the  charter  granted 
a right-of-way  not  exceeding  200  feet  in  width  across  these  lands. 
In  addition,  the  railroad  was  granted  2,595,000  acres  of  land  received 
by  the  state  from  the  federal  government  for  railroad  purposes.  In 
return  for  these  grants  the  railroad  was  required  to  pay  5%  of  its 
annual  gross  income  to  the  state,  and  an  annual  tax  was  to  be  as- 
sessed by  the  auditor  of  public  accounts  upon  all  the  corporate  assets 
as  determined  by  a statement  of  those  assets  filed  annually  by  the  com- 
pany with  the  auditor.  If  the  sum  of  the  two  taxes  should  not  equal 
7%  of  the  annual  income  of  the  company,  the  company  was  required 
to  pay  7%  of  its  yearly  income  to  the  state  in  lieu  of  all  other  taxes 
both  state  and  local.1 

The  proposed  constitution  of  1862  contained  a provision  that  “the 
general  assembly  of  this  state  shall  have  no  power  to  release,  sus- 
pend, modify,  alter,  remit  or  in  any  way  or  manner  impair  the  obli- 
gations of  the  Illinois  Central  Railroad  Company  to  pay  into  the  state 
treasury  all  sums  of  money  secured  to  the  state  by  the  charter  of  said 
company,  approved  Feb.  10,  1851 ; nor  to  release,  suspend,  modify, 
alter,  remit  or  in  any  manner  impair  any  right  of  taxation  of  lien 
secured  to  the  state  by  said  charter”. 

The  position  of  the  Illinois  Central  Railroad  was  discussed  fully 
in  the  constitutional  convention  of  1870. 2 Representatives  of  the 
counties  through  which  the  railroad  operated  wished  to  have  the 
amount  received  by  the  state  under  the  charter  distributed  among  the 
counties  in  which  the  right-of-way  lay,  in  view  of  the  fact  that  those 
counties  were  compelled  to  forego  the  collection  of  taxes  from  the 
railroad.  However,  the  opponents  of  this  proposal  finally  prevailed 
and  the  section  submitted  to  the  people  made  the  sums  received  from 
the  company  applicable  solely  to  state  purposes.  The  section  of  the 
constitution  with  respect  to  the  Illinois  Central  Railroad  was  submitted 
to  the  people  separately  and  was  adopted  by  a vote  of  147,032  to 
21,310.  The  only  counties  in  which  a majority  of  the  voters  were  op- 
posed to  the  adoption  of  the  section  were  Champaign,  Fayette,  Iro- 
quois, Kankakee  and  Marion. 

The  section  of  the  constitution  relating  to  the  Illinois  Central 
Railroad  Company  has  been  the  subject  of  a good  deal  of  litigation  in 

1 Charter  of  Illinois  Central  Railroad  Company,  Private  Laws  1851,  pp. 
61-74.  Brownson,  H.  G.,  History  of  the  Illinois  Central  Railroad  to  1870. 
University  of  Illinois  studies  in  the  social  sciences,  Vol.  4,  Nos.  3 and  4 (1915). 
See  also  W.  K.  Ackerman,  Historical  Sketch  of  the  Illinois  Central  Railroad, 
Chicago  1890. 

* Proceedings  and  Debates,  Constitutional  Convention  of  1870,  pp.  1199-1202, 
and  1243-1256. 


1184 


recent  years.  This  litigation  has  related  primarily  to  accounting  meth- 
ods in  determining  the  7%  payment  to  be  made  from  the  gross  re- 
ceipts of  the  railroad.  It  should,  of  course,  be  borne  in  mind  that  the 
7%  gross  receipts  tax  relates  merely  to  the  original  charter  lines  of 
the  railroad.  The  charter  lines  constitute  a total  mileage  of  705.50, 
and  comprise  the  line  from  Chicago  to  Cairo  (364.73)  and  from 
Dunleth  to  Branch  Junction  (340.77). 

Two  important  cases  have  passed  upon  questions  involving  the 
duty  of  the  company  to  pay  7%  upon  the  gross  receipts  from  its 
charter  lines.  These  cases  are  State  v.  Illinois  Central  Railroad  Com- 
pany (246  111.  188.  1910),  and  People  v.  Illinois  Central  Railroad 
Company  (273  111.  220.  1916).  A review  of  the  cases  bearing  upon 
the  Illinois  Central  section  will  be  found  in  the  Annotated  Constitu- 
tion. For  a full  review  of  the  issues  involved  in  the  case  decided  in 
246  111.  see  a pamphlet  prepared  by  Attorney  General  W.  H.  Stead 
on  the  Illinois  Central  case. 


Problems  of  collection.  The  cases  just  referred  to  outline  in 

detail  some  of  the  problems  involved  in  the  segregation  of  the  receipts 
of  the  charter  lines  from  the  receipts  of  the  Illinois  Central  Railroad 
system  as  a whole,  and  present  in  detail  a number  of  the  problems  which 
have  arisen  for  decision.  A large  number  of  the  points  at  issue  as 
between  the  railroad  and  the  state  have  been  settled  by  these  two  de- 
cisions. Since  1907  there  has  been  a good  deal  of  expenditure  on  the 
part  of  the  state  in  connection  with  the  collection  of  the  Illinois  Cen- 
tral gross  receipts  payments,  and  it  has  been  thought  worth  while  to 
give  a brief  statement  here  of  appropriations  since  1907.  Some  ap- 
propriations have  been  made  directly  to  the  governor,  but  the  ap- 
propriations have  in  the  main  been  made  to  the  attorney  general.  In 
the  table,  original  appropriations  alone  have  been  counted  and  reap- 
propriated items  have  merely  been  noted  but  not  included  in  the  totals. 


Appropriations  for  Illinois  Central  Litigation. 


Tear 

Attorney  General 

Governor 

Total 

1907 

$50,000 

$100,000 

$150,000 

1909 

(An  appropriation  of  $55,000  was  made 

Unexpended 

for  this  purpose  and  for  submerged 

balance 

lands  litigation) 

reappropriated 

1911 

$35,000  and  unexpended  balance  of  1909 

Unexpended 

appropriation. 

balance  of 

$100,000 

35,000 

1913 

$100,000  and  unexpended  balance. 

Reappropriates 

$49,905.90 

100,000 

1915 

$150,000 

150,000 

1917 

100,000 

100,000 

1919 

100,000 

100,000 

Total 

$635,000 

1185 


Amounts  received  from  Illinois  Central  railroad.  A table  is 

given  beloW  of  the  amounts  paid  into  the  state  treasury  by  the  Illi- 
nois Central  Railroad  for  a period  beginning  with  the  year  1855. 

Amounts  Paid  to  the  State. 

The  Illinois  Central  has  paid  into  the  state  treasury  the  following 
sums : 


1855  

$ 39,751.59 

1856  

77,631.66 

1857 

145,645.84 

1858  

132,005.53 

1859  

132,104.46 

1860  

177,557,22 

1861  

177,257.81 

1862  

212,174.60 

1863  

300,394.58 

1864  

415,514.04 

1865  

496,489.84 

1866  

427,075.75 

1867  

444,007,74 

1868  

428,397.48 

1869  

464,933.31 

1870  

464,584,52 

1871  

463,512.91 

1872  

442,856.54 

1873  

428,574.00 

1874  

394,366.46 

1875  

375,766.02 

1876  

356,005.58 

1877  

316,351.94 

1878  

320,431.71 

1879  

326,477.38 

1880  

368,348.66 

1881  

384,582.52 

1882  

396,036.11 

1883  

388,743.19 

1884  

356,679.62 

1885  

367,788.92 

1886  

378,714.50 

1887  

414,374.57 

1888  $ 418,955.89 

460,244.65 
486,281.13 
538,005.67 
589,486.02 
753,067.24 
553,911.49 
614,988.17 
624,550.83 
584,532.74 
657,032.81 
696,047.35 
784,093.01 
844,133.47 
942,061.19 
1,078,790.52 

1.062.571.86 
1,085,233.17 
1,192,425.01 
1,238,536.12 
1,093,106.44 
1,152,669.34 
1,217,927.84 
1,239,484.24 
1,219,160.54 
1,355,178.98 

1.379.880.57 
1,365,607.89 
1,617,918.62 

1.902.440.57 
2,259,740.64 

2.432.115.87 


$44,445,316.48 


Total 

(These  statistics  are  for  the  fiscal  years  ending  October  31). 


1889 

1890 

1891 

1892 

1893 

1894 

1895 

1896 

1897 

1898 

1899 

1900 

1901 

1902 

1903 

1904 

1905 

1906 

1907 

1908 

1909 

1910 

1911 

1912 

1913 

1914 

1915 

1916 

1917 

1918 

1919 


Comparison  of  payments  of  Illinois  Central  to  the  state  with 
taxation  of  other  railroads  in  Illinois.  In  any  comparison  of  pay- 
ments into  the  state  treasury  by  railroads  in  this  state,  it  should  be 


1186 


borne  in  mind  that  the  Illinois  Central  Railroad  not  only  received 
exemption  from  state  and  local  taxation  in  return  for  the  7%  gross 
receipts  payment,  but  also  a large  amount  of  land.  In  Brownson’s 
History  of  the  Illinois  Central  Railroad  he  says  that  “by  1874  approxi- 
mately two  million  two  hundred  thousand  acres  had  been  sold”  which 
made  an  average  receipt  per  acre  of  a little  over  twelve  dollars  in- 
cluding expenses,  or  eleven  dollars  net  receipts.  This  grant  of  two 
million  five  hundred  thousand  acres  of  land  has  been  a source  of  a 
great  profit  to  the  company,  and  at  the  same  time  has  been  managed 
well  and  sold  to  the  best  advantage  of  the  community  as  a whole  as 
well  as  of  the  company.”  On  page  139  of  Brownson’s  study  will  be 
found  a table  giving  the  receipts  of  the  land  office  from  1851  to  1907 
as  $29,480,292.82. 

So  far  as  actual  annual  taxation  is  concerned  it  is  difficult  to 
make  a precise  comparison  with  other  railroads.  A table  is  here  in- 
serted which  seeks  to  give,  for  several  years,  a comparison  of  Illinois 
Central  Railroad  payments  on  its  charter  lines  with  the  payments  by 
other  railroads.  In  connection  with  this  table  it  must,  however,  be 
borne  in  mind  that  terminal  roads  at  Chicago  and  East  St.  Louis  pay 
a higher  tax  per  mile  than  do  other  roads  and  more  per  mile  in  pro- 
portion to  gross  earnings  than  do  the  Illinois  Central  charter  lines.  A 
comparison  of  tax  per  mile  of  main  line  track  is  really  of  little  value. 
The  Illinois  Central  charter  lines  are  through  lines  of  large  earning 
capacity,  and  the  only  mileage  comparison  of  any  value  would  be  that 
of  the  Illinois  Central  charter  lines  with  the  principal  lines  of  other 
roads.  The  main  track  of  other  roads  includes  branch  lines  with 
small  earnings ; and  the  corresponding  subsidiary  lines  of  the  Illinois 
Central  are  not  included  in  the  charter  lines. 

Attention  may  also  be  called  to  the  fees  imposed  by  the  corpora- 
tion and  public  utilities  laws;  and  the  new  franchise  tax  on  corpora- 
tions established  in  1919.  Such  fees  have  in  the  past  been  paid  by 
the  Illinois  Central  as  well  as  other  railroads ; and  the  Attorney  Gen- 
eral has  held  that  the  new  franchise  tax  is  also  applicable  to  the  Illinois 
Central  railroad. 


)20 


1187 


Railroad  Taxation  in  Illinois .a 


Rate  of  taxes. 

Main 

Equalized 

Gross 

Total 

track 

assessed 

earnings  in 

taxes 

On  $1 

On  $1 

Per 

miles. 

valuation. 

Illinois. 

charged. 

assessed 

gross 

mile 

valua- 

earn- 

main 

[ 

tion. 

ings. 

track. 

Per 

1914 

Percent. 

cent. 

All  other  steam  roads.. 
I.  C.  charter  lines 

11,350 

705 

$200,794,695 

$196,288,374 

19,712,579 

$7,860,180 

1,379,880 

3.91 

4. 

7. 

$ 692 
1,957 

1915 

All  other  steam  roads.. 
I.  C.  charter  lines 

11,364 

705 

201,091,647 

206,460,681 

19,209,765 

8,577,396 

1,344,683 

4.26 

4.15 

7. 

754 

1,907 

1916 

All  other  steam  roads. . . 
I.  C.  charter  lines 

11,288 

705 

204,438,757 

216,894,570 

21,443,666 

9,742,991 

1,501,070 

4.77 

4.59 

7. 

863 

2,129 

1917 

All  other  steam  roads. . . 
I.  C.  charter  lines 

11.239 

705 

202,241,294 

171,965,071 
27, 177, 722 

10,358,205 

1,902,440 

5.12 

6.02 

7. 

921 

2,698 

a Compiled  from  “Tabular  statement  of  the  amount  of  taxes  charged  for 
collection  against  the  Equalized  Assessed  valuation  of  Railroad  Property,” 
issued  by  the  Auditor  of  Public  Accounts.  The  amounts  for  the  Illinois  Central 
Railroad  do  not  agree  exactly  with  the  figures  in  the  biennial  reports  of  the 
Auditor  of  Public  Accounts,  as  shown  on  p.  1185. 


Constitutionality  of  Illinois  Central  gross  receipts  tax.  Pro- 
fessor Henry  Schofield  in  an  article  in  the  Illinois  Law  Review  several 
years  ago  raised  an  issue  as  to  the  constitutionality  of  the  Illinois 
Central  gross  receipts  payments,  on  the  ground  that  this  payment  might 
be  held  to  be  a burden  upon  interstate  commerce.  His  view  was  that 
the  tax  provisions  of  the  charter  are  broad  enough  to  comprehend 
gross  receipts  from  interstate  as  well  as  from  domestic  commerce,  and 
the  charter  requirement  is  construed  to  apply  to  receipts  from  both 
sources.  In  reply  to  this  article  Dean  James  P.  Hall  took  the  view 
that  the  gross  receipts  provision  was  constitutional.  No  issue  of  fed- 
eral constitutionality  of  the  gross  receipts  provision  has  been  made  and 
so  far  as  can  now  be  discovered  none  is  likely  to  be  made.3 

8 Henry  Schofield,  The  State  Tax  on  Illinois  Central  Gross  Receipts,  and  the 
Commerce  Power  of  Congress,  Illinois  Law  Review,  I,  440.  J.  P.  Hall,  The 
State  Tax  on  Illinois  Central  Gross  Receipts — Another  View,  Illinois  Law  Re- 
view, II,  21. 


CONSTITUTIONAL  CONVENTION 


BULLETIN  No.  15 


Bill  of  Rights,  Education,  Militia,  Suffrage 
and  Elections,  Preamble,  Boundaries, 
Distribution  of  Powers, 
Schedule 


Compiled  and  Published  by  the 

LEGISLATIVE  REFERENCE  BUREAU 

Springfield,  Illinois 


[Printed  by  authority  of  the  State  of  Illinois.] 


LEGISLATIVE  REFERENCE  BUREAU. 


Governor  Frank  O.  Lowden,  Chairman. 
Senator  Edward  C.  Curtis,  Grant  Park. 
Senator  Richard  J.  Barr,  Joliet. 
Representative  Edward  J.  Smejkal,  Chicago. 
Representative  William  P.  Holaday,  Danville. 


E.  J.  Verlie,  Secretary. 

W.  F.  Dodd,  in  charge  collection  of  data  for 
constitutional  convention. 


i 


TABLE  OF  CONTENTS. 


PAGE. 

I.  Summary  1195 

II.  Bill  of  rights 1196 

Religious  liberty  and  aid  to  sectarian  institutions 1196 

Comment  upon  failure  of  accused  to  testify  in  his  own 

behalf 1199 

Capital  punishment 1200 

Libel 1200 

Constitutional  provisions  duplicating  those  of  federal 

constitution 1200 

Proposed  clause  guaranteeing  individual  initiative 1201 

III.  Education 1203 

IV.  Militia 1206 

V.  Suffrage  and  elections 1207 

VI.  Preamble,  boundaries,  distribution  of  powers  and 

SCHEDULE 1209 

Appendix — Illinois  constitutional  provisions 1210 

Preamble 1210 

Article  I.  Boundaries 1210 

Article  II.  Bill  of  rights 1210 

Article  III.  Distribution  of  powers. 1212 

Article  VII.  Suffrage 1212 

Article  VIII.  Education 1213 

Article  XII.  Militia 1213 


I.  SUMMARY. 


This  bulletin  will  seek  to  deal  with  certain  subjects  that  have  not 
been  dealt  with  in  other  bulletins  issued  for  the  use  of  the  constitu- 
tional convention.  It  will  confine  itself  primarily  to  problems  raised 
by  the  bill  of  rights  and  to  related  problems  involved  in  other  parts  of 
the  constitution.  In  connection  with  certain  suffrage  provisions  of  the 
bill  of  rights,  there  will  be  a brief  discussion  also  of  Art.  VII  of  the 
constitution.  In  connection  with  the  subject  of  religious  liberty  there 
will  be  some  discussion  of  Art.  VIII  dealing  with  education;  and  in 
connection  with  guarantees  regarding  military  matters,  there  will  be 
a brief  discussion  of  Art.  XII  of  the  constitution.  The  preamble,  the 
article  on  boundaries,  the  article  on  separation  of  powers  and  the 
schedule  require  little  comment  beyond  what  will  be  found  in  the 
Annotated  Constitution. 

A number  of  important  matters  with  respect  to  the  bill  of  rights 
have  been  dealt  with  in  other  bulletins  of  this  series.  The  subjects  of 
jury  trial  and  of  the  grand  jury  will  be  found  fully  discussed  in  Bul- 
letin No.  10,  dealing  with  the  judicial  department.  Problems  as  to  the 
extension  of  the  power  of  eminent  domain  and  excess  condemnation 
are  considered  in  Bulletin  No.  7.  The  problem  of  injunctions  in  labor 
cases  is  fully  discussed  in  Bulletin  No.  14,  devoted  to  economic  and 
industrial  problems,  and  further  reference  to  this  subject  is  unneces- 
sary in  this  bulletin.  The  question  as  to  the  extent  to  which  social  and 
industrial  legislation  has  been  prevented  by  interpretation  of  the 
present  constitution  is  to  some  extent  covered  in  the  bulletin  dealing 
with  the  judicial  department  (Bulletin  No.  10),  where  a chapter  will 
be  found  upon  the  power  of  the  courts  to  declare  laws  unconstitu- 
tional; and  in  Bulletin  No.  8,  on  the  legislative  department,  where  a 
chapter  will  be  found  on  legislative  powers.  With  respect  to  certain 
matters  upon  which  the  constitutionality  of  legislation  may  be  doubtful 
without  a change  in  the  present  constitutional  text,  a discussion  will  be 
found  in  Bulletin  No.  14,  dealing  with  social  and  industrial  problems. 


11.96 


II.  BILL  OF  RIGHTS. 


The  bill  of  rights  of  the  constitution  of  Illinois  is  similar  in  gen- 
eral to  the  bills  of  rights  in  other  state  constitutions.  No  questions 
whatever  are  raised  by  a number  of  the  provisions  of  the  bill  of  rights, 
and  such  provisions  will  probably  be  carried  forward  into  a new  con- 
stitution without  change.  The  sections  of  the  bill  of  rights  which  may 
present  the  most  serious  questions  to  the  constitutional  convention  are 
discussed  in  other  bulletins  in  this  series.  The  sections  which  will 
probably  present  the  most  serious  problems  are  SectionV^/dealing  with 
the  jury,  Section  (§)  dealing  with  the  grand  jury,  Section  Si,  dealing 
with  certain  guarantees  regarding  criminal  trials  (including  the  jury 
in  criminal  cases),  and  Section  18,  dealing  with  eminent  domain.  All 
of  these  matters  have  been  fully  discussed  in  other  bulletins,  and  it  is 
sufficient  here  merely  to  call  attention  to  this  fact.  This  discussion  will 
limit  itself  to  certain  other  matters  which  are  perhaps  less  important, 
but  which  may  receive  consideration  in  the  constitutional  convention. 


Religious  liberty  and  aid  to  sectarian  institutions.  Section  3 of 
Article  2 contains  a broad  guarantee  of  religious  liberty,  and  no  sugges- 
tion has*  been  made  regarding  a change  in  the  language  of  this  section. 
This  section  must,  however,  be  read  in  relationship  with  Article  VIII, 
Section  3,  of  the  constitution,  which  provides  that: 

“Neither  the  general  assembly  nor  any  county,  city,  town,  town- 
ship, school  district  or  other  public  corporation,  shall  ever  make  any 
appropriation  or  pay  from  any  public  fund  whatever  anything  in  aid  of 
any  church  or  sectarian  purpose,  or  to  help  support  or  sustain  any 
school,  academy,  seminary,  college,  university,  or  other  literary  or 
scientific  institution  controlled  by  any  church  or  sectarian  denomina- 
tion whatever ; nor  shall  any  grant  or  donation  of  land,  money  or  other 
personal  property  ever  be  made  by  the  state,  or  any  such  public  cor- 
poration, to  any  church  or  for  any  sectarian  purpose/' 

The  language  of  Article  VIII,  Section  3,  is  broad  and  inclusive, 
and  no  question  would  arise  regarding  a possible  change  in  this  lan- 
guage, were  it  not  for  recent  decisions  of  the  Illinois  supreme  court. 
The  real  problem  which  presents  itself  is  that  as  to  whether  a county 
or  other  public  corporation  may  commit  its  wards  to  sectarian  institu- 
tions, paying  such  institutions  for  the  care  of  such  wards.  In  the  case  of 
County  of  Cook  v.  Industrial  School  for  Girls,  125  111.  540  (1888),  a 
statute  was  involved  under  which  a girl  was  to  be  committed  to  the 
Industrial  School  for  Girls  at  Chicago  in  said  county,  to  be  in  such 


1197 


school  kept  and  maintained  until  she  arrives  at  the  age  of  eighteen 
years,  unless  sooner  discharged  therefrom  according  to  law.  No  Chi- 
cago Industrial  School  for  Girls  had  actually  been  established  as  a 
separate  institution  and  girls  were  committed  under  the  act  to  two  in- 
stitutions which  were  admittedly  sectarian.  The  Board  of  Commis- 
sioners of  Cook  county  declined  to  pay  bills  for  girls  committed  to 
these  sectarian  institutions,  on  the  ground  that  such  payment  would  be 
in  violation  of  Article  VIII,  Section  3,  of  the  constitution.  In  the 
above  case,  involving  an  action  to  recover  for  the  care  of  children  by 
sectarian  institutions,  Judge  Magruder  said : 

“It  cannot  be  said  that  a contribution  is  no  aid  to  an  institution  be- 
cause such  contribution  is  made  in  return  for  services,  rendered  or 
work  done.  The  school  is  aided  by  the  patronage  of  its  pupils,  even  if 
they  do  pay  for  their  tuition.  Because  the  customers  of  a merchant 
pay  for  their  goods,  it  is  none  the  less  true  that  his  business  is  aided 
by  their  custom.  The  act  under  discussion  is  entitled  ‘An  act  to  aid 
Industrial  Schools  for  Girls’.  If  the  payment  by  the  county  of  $10 
per  month  on  account  of  each  dependent  girl  committed  to  such  a 
school  is  no  aid  to  the  school  simply  because  ‘tuition,  maintenance  and 
care’  are  furnished  in  return  for  such  payment,  then  the  act  is  not 
properly  entitled.  . . . It  is  an  untenable  position  that  public 

funds  may  be  paid  out  to  help  support  sectarian  schools,  provided  only 
such  schools  shall  render  a quid  pro  quo  for  the  payments  made  to 
them.  The  constitution  declares  against  the  use  of  public  funds  to  aid 
sectarian  schools  independently  of  the  question  whether  there  is  or  is 
not  a consideration  furnished  in  return  for  the  funds  so  used.” 

It  would  have  been  possible  to  have  reached  the  same  conclusion 
in  the  Chicago  Industrial  School  for  Girls  case  without  a square  pro- 
nouncement upon  the  question  of  aid  to  sectarian  institutions. 

The  problem  of  committing  public  wards  to  a sectarian  institution 
came  up  again  in  the  case  of  Dunn  v.  Chicago  Industrial  School  for 
Girls,  280  111.  613  (1917).  In  this  case  an  injunction  was  sought  to 
prevent  the  payment  of  a sum  of  money  for  the  care  and  maintenance 
of  girls  committed  to  the  Chicago  Industrial  School  for  Girls  by  the 
Juvenile  Court  of  Cook  county,  upon  the  ground  that  making  a pay- 
ment of  an  appropriation  would  violate  Article  VIII,  Section  3,  of  the 
constitution.  The  facts  showed  that  the  institution  was  under  the  con- 
trol and  management  of  the  Roman  Catholic  Church,  and  that  the 
children  committed  to  the  school  by  the  Juvenile  court  were  children 
of  Catholic  parents  and  members  of  that  church.  The  school  was  to 
receive  $15  per  month  for  each  girl,  and  this  was  said  to  be  less  than 
the  cost  of  maintaining  a girl  in  a similar  state  institution,  and  less 
than  the  cost  of  food,  clothing,  training,  medical  care  and  tuition  fur- 
nished to  the  wards  of  the  county,  the  institution  making  up  the  bal- 
ance through  private  sources.  The  court  said : 

“It  would  be  contrary  to  the  letter  and  spirit  of  the  constitution  to 
exclude  from  religious  exercises  the  members  of  any  denomination 
when  the  state  assumes  their  control,  or  to  prevent  children  of  members 
from  receiving  the  religious  instruction  which  they  would  have  re- 
ceived at  home.  The  constitutional  prohibition  against  furnishing  aid 


1198 


or  preference  to  any  church  or  sect  is  to  be  rigidly  enforced,  but  it  is 
contrary  to  fact  and  reason  to  say  that  paying  less  than  the  actual  cost 
of  clothing,  medical  care  and  attention,  education  and  training  in  use- 
ful arts  and  domestic  sciences,  is  aiding  the  institution  where  such 
things  are  furnished.” 

The  position  in  this  case  was  distinguished  from  that  in  125  111., 
by  virtue  of  the  view  that  the  industrial  school  in  that  case  had  no 
power  to  relinquish  the  care  and  guardianship  of  girls  committed  to 
it  (the  school  in  that  case  being  shown  to  have  no  actual  existence), 
and  also  by  virtue  of  the  fact  that  there  was  no  showing  in  that  case 
that  the  sectarian  institution  would  not  receive  aid  from  the  pay- 
ments sought  to  be  made. 

A view  similar  to  that  in  the  case  just  discussed  will  be  found 
in  Dunn  v.  Addison  Manual  Training  School  for  Boys,  281  111.  352 
(1917),  Trost  v.  Ketteler  Manual  Training  School  for  Boys,  282  111. 
504  (1918),  and  St.  Hedwig’s  Industrial  School  for  Girls  v.  County  of 
Cook,  289  111.  432  (1919). 

These  cases  may  raise  an  issue  before  the  constitutional  con- 
vention as  to  whether  the  constitutional  language  shall  be  so  changed 
as  to  prevent  the  use  of  sectarian  institutions  for  public  purposes, 
even  though  the  sectarian  institutions  actually  sustain  a loss  in  the 
performance  of  the  service  rendered  to  the  public. 

In  connection  with  this  matter,  attention  may  be  called  to  the 
fact  that  in  Massachusetts,  aid  to  sectarian  institutions  was  not  pro- 
hibited by  the  constitution  before  1917.  This  issue  was  one  of  the 
most  important  of  those  presented  in  the  constitutional  convention  in 
Massachusetts  in  1917.  A full  discussion  of  the  situation  in  Massa- 
chusetts will  be  found  in  Massachusetts  Constitutional  Convention 
Bulletin  No.  17, 1 and  a full  debate  upon  this  matter  will  be  found  in 
the  Debates  of  the  Massachusetts  Constitutional  Convention,  Volume 
1.  pages  44  to  363.  This  problem  was  not  a new  one  in  Massachusetts. 
An  amendment  regarding  the  matter  had  been  proposed  by  the  con- 
stitutional convention  of  1853,  but  failed.  However,  an  identical  pro- 
posal was  submitted  by  the  Massachusetts  general  court  in  1855  and 
adopted  by  the  people.  This  amendment  provided: 

“That  all  moneys  raised  by  taxation  in  the  towns  and  cities  for 
the  support  of  public  schools,  and  all  moneys  which  may  be  appro- 
priated by  the  state  for  the  support  of  common  schools,  shall  be  ap- 
plied to  and  expended  in  no  other  schools  than  those  which  are  con- 
ducted according  to  law  under  the  order  and  superintendence  of  the 
authorities  of  the  town  or  city  in  which  the  money  is  to  be  expended, 
and  such  money  shall  never  be  appropriated  to  any  religious  sect  for 
the  maintenance,  exclusively,  of  its  own  schools.” 

The  supreme  judicial  court  of  Massachusetts  took  the  view  that 
the  language  of  this  amendment  did  not  prohibit  “appropriations  for 
higher  educational  institutions,  societies  or  undertakings  under  sec- 
tarian or  ecclesiastical  control”. 


bulletin  No.  17,  Appropriations  for  Sectarian  and  Private  Purposes. 


1199 


In  1917  the  Massachusetts  constitutional  convention  submitted 
a proposal  of  amendment,  which  was  adopted  by  the  people  of  Massa- 
chusetts. This  amendment  seems  to  make  it  perfectly  clear  that 
public  funds  may  not  be  used  for  any  higher  institution  of  educa- 
tion under  sectarian  control,  but  the  amendment  adds  that  “nothing 
herein  contained  shall  be  construed  to  prevent  the  commonwealth, 
or  any  political  division  thereof,  from  paying  to  privately  controlled 
hospitals,  infirmaries  or  institutions  for  the  deaf,  dumb  or  blind,  not 
more  than  the  ordinary  and  reasonable  compensation  for  care  or  sup- 
port actually  rendered  or  furnished  by  such  hospitals,  infirmaries 
or  institutions  to  such  persons  as  may  be,  in  whole  or  in  part,  unable 
to  support  or  care  for  themselves”.  In  large  part,  it  will,  therefore, 
be  seen  that  the  Massachusetts  constitutional  amendment  authorizes 
the  practice  now  approved  by  the  supreme  court  of  Illinois. 

The  subject  of  Bible  readings  in  the  schools  may  also  be  presented 
to  the  convention.  In  the  case  of  People  ex  rel.  Ring  v.  Board  of 
Education,  245  111.  334  (1910)  the  supreme  court  took  the  view  that 
the  reading  of  the  Bible  in  the  public  schools  constitutes  sectarian  in- 
struction in  violation  of  Article  VIII,  Section  3,  of  the  constitution. 
Justices  Hand  and  Cartwright  dissented.  A full  review  of  the  cases 
upon  Bible  reading  in  the  public  schools  will  be  found  in  an  article  by 
Professor  Henry  Schofield,  in  the  Illinois  Law  Review,  Vol.  VI,  pages 
19,  71  (1911). 

With  respect  to  the  matter  of  religion,  attention  may  also  be 
called  to  the  fact  that  the  preamble  to  the  constitution  definitely  recog- 
nizes religion,  and  that  Article  9,  Section  3,  of  the  constitution  ex- 
pressly authorizes  the  exemption  from  taxation  of  property  used  ex- 
clusively for  religious  purposes.  The  question  *of  tax  exemption  may 
also  come  before  the  constitutional  convention,  and  in  the  Annotated 
Constitution  will  be  found  a full  review  of  the  decisions  bearing  upon 
what  property  is  held  to  be  used  exclusively  for  religious  purposes, 
so  that  it  may  be  exempted  from  taxation. 


Comment  upon  failure  of  accused  to  testify  in  his  own  behalf. 

In  connection  with  Article  2,  Section  10,  of  the  constitution,  proposal 
will  probably  be  made  that  comment  be  permitted  upon  the  failure  of 
an  accused  person  to  testify  in  his  own  behalf.  Ohio,  in  1912,  adopted 
a constitutional  amendment,  which  provides  that  “no  person  shall  be 
compelled  in  any  criminal  case  to  be  a witness  against  himself ; but  his 
failure  to  testify  may  be  considered  by  the  court  and  jury  and  may 
be  made  the  subject  of  comment  by  counsel”.  A similar  proposal 
was  made  in  the  Massachusetts  constitutional  convention,  but  was 
rejected  after  a brief  debate,  in  which  opposing  views  were  well  pre- 
sented.2 

In  connection  with  the  proposal  that  comment  be  permitted  upon 
the  failure  of  an  accused  to  testify  in  his  own  behalf,  some  effort  may 

2 Debates  in  Massachusetts  Constitutional  Con  tention,  1917-1918,  Vol.  T, 
375-380. 


1200 


be  made  to  prohibit  uy  constitutional  change  the  so-called  “third 
degree”.  It  is  questionable,  however,  whether  any  constitutional  pro- 
vision would  effect  any  actual  change  in  the  method  of  dealing  with 
prisoners  by  police  and  other  authorities.  The  privilege  of  comment- 
ing upon  the  failure  of  the  accused  to  testify  in  his  own  behalf  is 
oftentimes  urged  as  a means  of  reducing  the  incentive  of  officials  to 
obtain  confessions  from  an  accused  person  by  unlawful  means. 


Capital  punishment.  The  effort  to  abolish  capital  punishment 
will  almost  certainly  come  before  the  constitutional  convention.  The 
matter  of  capital  punishment  is  one  as  to  which  legislative  power  is 
now  sufficient,  and  bills  for  the  abolition  of  capital  punishment  have 
been  before  the  Illinois  general  assembly  for  a number  of  years,  and 
have  failed  of  enactment.  A bill  was  passed  by  the  two  houses  of 
the  general  assembly  in  1917  to  remove  the  death  penalty  upon  con- 
viction of  the  crime  of  murder,  and  to  repeal  the  sections  of  the 
statute  prescribing  the  manner  of  inflicting  the  death  penalty.  This 
bill  was  vetoed  by  the  governor.  The  veto  was  based  partly  upon 
the  ground  that  a life  convict  guilty  of  murder  would,  if  the  bill  were 
enacted,  be  subject  to  no  penalty,  and  also  that  the  period  of  war  was 
an  undesirable  one  for  the  enactment  of  such  legislation.3 

Oregon,  in  1914,  adopted  a constitutional  amendment  abolishing 
capital  punishment,  but  in  the  other  states  in  which  capital  punishment 
has  been  abolished,  this  action  has  been  taken  by  legislative  enactment. 
A proposal  for  the  abolition  of  capital  punishment  was  made  in  the 
Massachusetts  constitutional  convention,  and  a discussion  of  this  sub- 
ject will  be  found  in  the  debates  of  that  convention,  Volume  1,  pages 
439-449.4 


Libel.  Section  4 of  Article  II  provides  that  “in  all  trials  for 
libel,  civil  and  criminal,  the  truth  when  published  with  good  motives 
and  for  justifiable  ends,  shall  be  a sufficient  defense”.  This  clause  has 
been  applied  in  a recent  important  decision  of  the  supreme  court 
(Ogren  v.  Rockford  Star  Printing  Co.  288  111.  405,  1919),  and  this 
decision  has  been  discussed  in  recent  issues  of  the  Illinois  Law  Review 
(October,  December,  1919,  Vol.  XIV,  pp.  226,  378).  An  effort  may 
be  made  to  alter  the  constitutional  rule  which  makes  the  truth  a defense 
only  “when  published  with  good  motives  and  for  justifiable  ends”. 


Constitutional  provisions  duplicating  those  of  the  federal  con- 
stitution.  Section  2 of  the  bill  of  rights  duplicates  a similar  limita- 
tion upon  the  states  in  the  Fourteenth  amendment  of  the  Constitution 
of  the  United  States,  and  Section  14  duplicates  the  prohibitions  of  the 

3 Governor’s  Veto  Messages  of  Senate  and  House  Bills,  Fiftieth  general 

assembly,  1917,  page  3.  _ 

4 See  also  Massachusetts  Constitutional  Convention  Bulletin  No.  5.  The  abo- 
lition of  capital  punishment. 


1201 


federal  constitution  against  the  state  enactment  of  ex  post  facto  laws 
or  laws  impairing  the  obligation  of  contracts.  There  has  been  some 
discussion  in  this  country  of  the  desirability  of  having  but  one  set  of 
broad  constitutional  limitations  upon  the  states.  If  there  was  but  one 
set  of  broad  limitations  such  as  that  in  the  due  process  of  law  clause, 
the  federal  limitation  would  then  receive  uniform  construction  for  the 
whole  country.  Some  difficulty  has  been  occasioned  in  Illinois  and 
other  states  by  virtue  of  the  fact  that  legislation  may  be  held  by  the 
United  States  courts  not  to  be  in  conflict  with  the  due  process  of  law 
clause  of  the  federal  constitution,  but  may  be  held  by  the  state  court 
to  be  in  conflict  with  the  identical  clause  of  the  state  constitution.  In 
such  case  the  decision  of  the  state  supreme  court  is  final,  because  it  is  a 
decision  construing  the  language  of  the  state  constitution,  and  so  con- 
struing such  language  as  not  to  raise  a federal  constitutional  question. 
A full  discussion  of  the  problem  here  suggested  will  be  found  in  a 
chapter  on  legislative  powers  in  Bulletin  No.  8 of  this  series,  and  it  is 
sufficient  here  merely  to  raise  the  question.  If  the  policy  were  adopted 
of  omitting  from  the  state  constitution  guarantees  which  duplicate 
those  in  the  constitution  of  the  United  States,  attention  should  at  the 
same  time  be  called  to  the  fact  that  Article  4,  Section  22,  of  the  con- 
stitution of  Illinois  has  received  a construction  equally  as  broad  as  the 
due  process  of  law  clause,  insofar  as  that  section  prohibits  special  or 
local  laws  granting  special  privileges,  immunities  or  franchises. 


Proposed  clause  guaranteeing  individual  initiative.  The  con- 
stitution of  Illinois  contains  two  guarantees  which  have  been  construed 
broadly  so  as  to  prohibit  legislation  which  the  court  may  regard  as  un- 
duly restrictive  of  individual  rights.  As  has  just  been  indicated,  these 
clauses  areithe  due  process  of  law  clause  and^fhe  clause  prohibiting 
special  legislation  conferring  special  privileges,  immunities  and  fran- 
chises. These  broad  clauses  probably  meet  all  the  requirements  that 
can  be  met  by  broad  constitutional  guarantees.  As  has  been  indicated  in 
the  discussion  under  legislative  powers  in  Bulletin  No.  8,  these  broad 
guarantees  have  not  been  defined  by  the  courts,  and  are  probably  in- 
capable of  judicial  definition.  The  things  forbidden  by  the  guarantees 
change  with  changing  economic  and  social  conditions,  and  the  courts 
may  because  of  such  changes  hold  a legislative  enactment  proper  at 
one  time,  even  though  the  same  or  a similar  enactment  has  been  held 
improper  in  an  earlier  period.  Thus  the  courts  apply  these  broad  guar- 
antees (although  they  have  never  so  indicated)  to  meet  conditions  as 
they  present  themselves,  varying  to  some  extent  the  actual  content  of 
the  guarantees  with  changing  conditions. 

The  suggestion  has  been  made  that  there  be  ^embodied  in  the  bill 
of  righ’ts  a statement  that  every  individual  should  be  permitted  to  use 
his  capacities  to  the  furthest  possible  extent,  independently  of  legisla- 
tive prohibition.  Such  a principle,  if  announced  in  the  constitution, 
would  probably  do  no  harm,  but  would  also  probably  accomplish  little 
good.  Statements  of  broad  principles  in  the  constitution  have  usually 
had  little  effect,  unless  such  principles  were  capable  of  fairly  definite 


judicial  application,  and  it  is  probable  that  the  matter  here  dealt  with 
would  not  be  capable  of  such  judicial  application.  Not  only  this,  but 
such  a proposal,  if  embodied  in  the  constitution  may  be  capable  of  a 
double  interpretation.  It  may  if  applied  by  the  courts  be  held  to  in- 
hibit legislative  action  in  numerous  cases,  although  it  probably  would 
not  lead  to  the  annulment  of  legislation,  which  might  be  held  proper 
under  the  due  process  of  law  clause.  On  the  other  hand,  such  a provi- 
sion might  be  held  to  justify  legislative  action  intended  to  give  an  equal 
opportunity  to  each  citizen  in  the  acquisition  of  education  or  facilities 
for  the  use  of  such  capacities  as  he  might  possess;  and  might,  there- 
fore,  be  employed  as  a means  of  aiding  the  socialistic  ideal. 


1203 


III.  EDUCATION. 


The  matter  of  religion  in  the  schools  has  been  dealt  with  in  an 
earlier  part  of  this  bulletin.  Some  other  matters  are  likely  to  come 
before  the  convention  with  respect  to  the  article  of  the  constitution 
dealing  with  education. 

There  will  undoubtedly  be  some  discussion  of  the  proposal  for  a 
constitutional  recognition  of  the  University  of  Illinois,  or  of  both  the 
university  and  the  normal  schools.  The  University  of  Illinois  is  now 
controlled  entirely  by  statutory  enactments,  although  an  incidental  ref' 
erence  to  the  university  is  contained  in  Article  VIII,  Section  2,  with 
respect  to  lands,  moneys  or  other  property  donated,  granted  or  received 
for  school,  college,  seminary  or  university  purposes.  The  university 
is  now  subject  to  the  management  and  control  of  a board  of  trustees, 
composed  of  the  governor,  the  superintendent  of  public  instruction,  and 
nine  other  trustees,  of  whom  three  are  elected  every  two  years,  to  serve 
for  a six  year  term.  The  elective  trustees  are  voted  for  by  the  voters 
of  the  state  at  the  biennial  general  elections  upon  the  same  ballots  with 
the  state  officers  to  be  chosen  at  such  elections. 

In  1911  provision  was  made  for  the  levy  of  a one  mill  state  tax 
for  the  support  of  the  University  of  Illinois,  this  tax  being  based  upon 
the  principle  of  taxing  property  at  one-third  of  its  value.  In  1919, 
when  the  basis  of  taxation  was  raised  to  one-half  of  full  value,  this 
tax  was  proportionately  reduced  to  two-thirds  of  one  mill.  In  the  report 
of  the  Efficiency  and  Economy  Committee1  will  be  found  a full  state- 
ment regarding  the  organization  of  boards  for  the  control  of  state  uni- 
versities. The  more  common  practice  is  to  have  appointive  boards. 
However,  a number  of  states  have  constitutional  provisions  regarding 
the  state  university.  Perhaps  the  most  important  university  controlled 
by  an  elective  board  is  that  of  Michigan,  whose  constitution  provides 
that  “there  shall  be  a board  of  regents  of  the  university,  consisting  of 
eight  members,  who  shall  hold  the  office  for  eight  years.  There  shall 
be  elected  at  each  regular  biennial  spring  election  two  members  of  such 
board.  When  a vacancy  shall  occur  in  the  office  of  regent,  it  shall  be 
filled  by  appointment  of  the  governor.”  Boards  of  regents  or  of  trus- 
tees for  state  universities  are  also  made  elective  by  constitutional  pro- 
visions in  Colorado  and  Nebraska. 

With  respect  to  the  county  superintendent  of  schools,  the  con- 
stitution speaks  of  election,  but  provides  that  the  manner  of  election 
shall  be  prescribed  by  law.  The  issue  has  never  presented  itself,  but  the 
use  of  the  word  “election”,  united  with  the  uniform  practice  of  electing 
that  officer  by  popular  vote  under  the  constitution  of  1870,  may  make 


1 Report  of  Efficiency  and  Economy  Committee,  1915,  pages  439-440. 


1204 


it  doubtful  as  to  whether  the  county  superintendent  could  be  made  ap- 
pointive if  this  were  desired.  With  respect  to  any  proposal  for  con- 
solidation of  city  and  county  functions,  either  within  the  city  of  Chi- 
cago or  within  other  areas  of  the  state,  attention  should  also  be  called 
to  the  fact  that  the  constitutional  provision  regarding  a county  super- 
intendent would  in  case  of  such  consolidation  make  it  necessary  to  con- 
tinue a county  school  officer  in  addition  to  a city  school  superintendent. 

In  discussing  constitutional  provisions  regarding  education  it 
should  be  noted  that  the  state  superintendent  of  public  instruction  is 
provided  for  by  article  V,  section  1,  of  the  constitution. 

Article  VIII,  Section  4,  provides  that  no  teacher,  state,  county, 
township  or  district  school  officer  shall  be  interested  in  the  sale,  pro- 
ceeds or  profits  of  any  book,  apparatus  or  furniture  used  or  to  be  used 
in  any  school  in  this  state,  with  which  such  officer  or  teacher  may  be 
connected,  under  such  penalties  as  may  be  provided  by  the  general  as- 
sembly. Some  effort  may  be  made  to  change  this  constitutional  provi- 
sion, inasmuch  as  it  substantially  prohibits  the  use  in  Illinois  of  text 
books  prepared  by  any  school  officer  within  this  state.  It  may  be  pos- 
sible to  prevent  the  abuses  aimed  at  without  unduly  restricting  the 
preparation  of  text  books  within  the  limits  of  the  state.  In  any  case, 
it  will  be  desirable  to  coordinate  with  this  section  the  provisions  of  Ar- 
ticle IV,  Section  15,  and  Article  IV,  Section  25.  The  provisions  re- 
garding interest  in  contracts  now  do  not  cover  the  whole  subject,  and 
may  be  found  in  three  parts  of  the  constitution. 

Efforts  will  probably  be  made  to  add  specific  constitutional  pro- 
visions regarding  kindergartens,  vocational  education  or  other  types  of 
educational  methods.  In  connection  with  this  matter,  it  should  prob- 
ably be  said  that  Article  VIII,  Section  1,  of  the  constitution  lays  down 
as  broadly  as  is  possible  the  duty  of  the  general  assembly  to  provide 
“a  thorough  and  efficient  system  of  free  schools”.  (Powell  v.  Board 
of  Education,  97  111.  375.  1881).  Details  as  to  elements  constituting 
such  a system  of  free  schools  may  lead  to  judicial  implications  limiting 
the  present  full  power  conferred  upon  the  general  assembly.  Here,  as 
elsewhere  in  a constitution,  details  are  dangerous  from  the  standpoint 
of  judicial  construction,  and  it  is  usually  true  that  details  as  to  an  edu- 
cational system  are  likely  to  be  quickly  outgrown  if  placed  in  a consti- 
tution. The  changing  of  such  details  then  becomes  a difficult  matter. 

.In  connection  with  the  problem  of  education,  attention  should  be 
called  to  Section  18  of  the  schedule  by  which  “all  laws  of  the  State  of 
Illinois  and  all  official  writings  and  the  executive.,  legislative  and  ju- 
dicial proceedings  shall  be  conducted,  preserved  and  published  in  no 
other  than  the  English  language”.  It  seems  unnecessary  that  anything 
should  be  added  to  this  language,  for  the  whole  matter  can  now  be 
adequately  dealt  with  by  statute,  although  attention  should  be  called  to 
the  possibility  of  a proposal  of  amendment  being  made  requiring  that 
all  instruction  in  schools  be  in  the  English  language.  Proposals  of  this 
character,  in  connection  with  the  so-called  Americanization  movement, 
led  in  1919  to  the  enactment  of  a statutory  provision  which  reads  as 
follows : 


1205 


“Because  the  English  language  is  the  common  as  well  as  official 
language  of  our  country,  and  because  it  is  essential  to  good  citizenship 
that  each  citizen  shall  have  or  speedily  acquire,  as  his  natural  tongue, 
the  language  in  which  the  laws  of  the  land,  the  decree  of  the  courts, 
and  the  proclamations  and  pronouncements  of  its  officials  are  made, 
and  shall  easily  and  naturally  think  in  the  language  in  which  the  obliga- 
tions of  his  citizenship  are  defined,  the  instruction  in  the  elementary 
branches  of  education  in  all  schools  in  Illinois  shall  be  in  the  English 
language.  Provided , that  this  shall  not  apply  to  vocational  schools 
where  the  pupils  have  already  received  the  required  instruction  in  Eng- 
lish during  the  current  year.”  (Laws  of  1919,  pp.  917-918). 

The  teaching  of  foreign  languages  under  earlier  statutes  was  sus- 
tained in  the  Powell  case,  cited  above,  and  the  enactment  of  1919  ap- 
pears not  to  forbid  such  teaching. 


i 


1206 


IV.  MILITIA. 


No  suggestions  have  been  received  as  to  changes  that  may  be  pro- 
posed in  Article  XII  of  the  constitution  dealing  with  the  militia.  In 
connection  with  Article  XII,  attention  should,  of  course,  be  given  also 
to  Section  15  and  16  of  Article  II.  Most  of  the  provisions  of  the  arti- 
cle dealing  with  militia  merely  lay  down  principles  which,  in  any  case, 
would  be  followed,  and  the  constitution  with  respect  to  this  matter  im- 
poses no  serious  restrictions  upon  legislative  action.  Perhaps,  however, 
proposals  may  be  made  (1)  to  establish  general  military  training  by 
constitutional  provision  and  (2)  to  lay  down  some  constitutional  rule 
as  to  the  relationship  between  the  state  and  national  governments  in 
military  affairs. 


V.  SUFFRAGE  AND  ELECTIONS. 


Article  VII  should  be  considered  in  connection  with  the  provisions 
of  Article  II,  Section  18,  that  “all  elections  shall  be  free  and  equal”. 

With  respect  to  Section  1 of  Article  VII,  a material  change  will  be 
proposed,  granting  suffrage  to  women.  It  will  be  unnecessary  to  dis- 
cuss here  the  subject  of  woman  suffrage,  as  a statement  regarding  the 
situation  in  Illinois  and  in  other  states  will  be  found  in  the  pamphlet 
upon  the  “Constitutional  Convention  in  Illinois”,  second  edition,  pages 
107-111.  The  rapid  progress  being  made  toward  the  ratification  of  the 
proposed  federal  amendment  will  probably  result  in  full  suffrage  for 
women  in  this  state  in  the  near  future ; although  a proposed  amend- 
ment to  the  constitution  of  Illinois,  if  promptly  adopted,  may  come  into 
effect  before  the  adoption  of  the  federal  amendment.1 

With  respect  to  Section  1,  the  question  may  also  present  itself  as 
to  whether  there  is  need  for  continuing  the  provisions  regarding  those 
who  were  electors  in  the  year  1848.  This  provision  was  adopted  for  the 
purpose  of  saving  the  right  to  vote  to  certain  persons  who  would  not 
otherwise  have  been  qualified  under  the  constitutions  of  1848  and  1870, 
and  is  probably  now  unnecessary,  although  its  retention  would  do  no 
harm,  and  there  may  be  a few  cases  of  voters  qualified  before  1848  who 
would  not  be  qualified  under  present  constitutional  provisions.  The 
clause  in  this  section  with  respect  to  naturalization  is  now  unnecessary. 

Certain  other  questions  may  present  themselves  with  respect  to  the 
suffrage  article.  In  connection  with  Section  1,  the  matter  of  compul- 
sory voting  may  be  urged.  A discussion  of  this  subject  will  be  found 
in  the  Massachusetts  constitutional  convention  Bulletin  No.  24.  An 
amendment  was  proposed  by  the  Massachusetts  constitutional  conven- 
tion and  adopted  by  the  people  of  that  state  in  1918  that  “the  general 
court  shall  have  authority  to  provide  for  compulsory  voting  at  elec- 
tions, but  the  right  of  secret  voting  shall  be  preserved”. 

In  connection  with  ^Article  VII,  Section  2,  it  is  now  clear  that  the 
requirements  of  a ballot  means  a requirement  of  secret  voting.  The 
supreme  court  of  this  state  has  held  that  the  provisions  that  “all  votes 
shall  be  by  ballot”  does  not  forbid  the  use  of  a voting  machine,  and 
that  the  primary  purpose  of  the  provision  is  to  require  secrecy  in  vot- 
ing. Amendments  have  been  adopted  to  some  constitutions  expressly 
authorizing  the  use  of  voting  machines,  in  order  to  overcome  decisions 
of  courts  against  the  use  of  such  machines.  However,  there  is  no 
difficulty  of  this  character  in  Illinois,  if  it  is  desired  to  use  voting  ma- 

1 A full  review  of  woman  suffrage  in  the  United  States  will  be  found  also 
in  Massachusetts  constitutional  convention  Bulletin  No.  3,  Woman  Suffrage  in  the 
United  States. 


1208 


chines,  and  the  requirement  of  secrecy  of  voting  is  sufficiently  pre- 
served by  the  existing  constitutional  provisions. 

In  connection  with  Article  VII,  Sections  4 and  5,  it  may  be  deemed 
proper  to  place  in  the  constitution  an  express  provision  authorizing  ab- 
sent voting.  However,  such  a provision  seems  unnecessary  and  there 
is  little  doubt  as  to  the  constitutionality  of  present  absent  voting  legis- 
lation in  this  state. 

Article  VII,  Section  6,  provides  that  no  person  “shall  be  elected  or 
appointed  to  any  office  in  this  state,  civil  or  military,  who  is  not  a citi- 
zen of  the  United  States  and  who  shall  not  have  resided  in  this  state 
one  year  next  preceding  the  election  or  appointment”.  In  the  case  of 
People  v.  McCormick,  261  111.  413,  the  supreme  court  has  said: 

“It  may  be  true  that  many  persons  having  constitutional  qualifi- 
cations are  wholly  unfit  to  discharge  the  duty  of  many  offices  within 
the  state,  but  if  the  legislature  possesses  the  power  to  vary  the  constitu- 
tional qualifications  for  office  by  adding  new  requirements  or  imposing 
additional  limitations,  then  eligibility  to  office  and  freedom  of  elections 
depend  not  upon  constitutional  guarantees,  but  upon  legislative  for- 
bearance. If  the  legislature  may  alter  the  constitutional  requirements, 
its  power  is  unlimited,  and  only  such  persons,  may  be  elected  to  office 
as  the  legislature  may  permit.  In  our  judgment,  when  the  constitution 
undertakes  to  prescribe  qualifications  for  office  its  declaration  is  con- 
clusive of  the  whole  matter,  whether  in  affirmative  or  negative  form 
The  expression  of  the  disabilities  specified  excludes  others. 
The  declaration  in  the  constitution  that  certain  persons  are  not  eligible 
to  office  implies  that  all  other  persons  are  eligible.” 

Some  change  must,  therefore,  be  made  in  this  section,  if  it  is  de- 
sired to  permit  the  general  assembly  to  prescribe  specific  qualifications 
for  certain  offices. 

Article  VII,  Section  7.,  says  that  “the  general  assembly  shall  pass 
laws  excluding  from  the  right  of  suffrage  persons  convicted  of  in- 
famous crimes”.  In  accordance  with  the  general  rules  of  constitutional 
construction,  as  laid  down  in  the  McCormick  case  just  referred  to,  this 
specification  is  also  exclusive,  and  constitutional  change  will  be  neces- 
sary if  it  is  desired  to  permit  the  exclusion  from  the  suffrage  of  other 
persons  than  those  convicted  of  infamous  crimes.  (Christie  v.  People, 
206  111.  337  1903). 

The  constitution  of  some  states  contain  expressions  requiring  leg- 
islation to  preserve  the  purity  of  the  ballot  or  prevent  corrupt  practices. 
Such  provisions  are  of  little  value,  for  legislative  power  is  ample  with- 
out them. 


VI.  PREAMBLE,  BOUNDARY,  DISTRIBUTION  OF 
POWERS,  AND  SCHEDULE. 


Little  need  be  said  about  any  of  these  subjects.  No  change  has 
been  suggested  with  respect  to  the  preamble  or  with  respect  to  the  ar- 
ticle dealing  with  state  boundaries.  The  principle  of  the  separation  of 
powers  as  stated  in  the  constitution  is  in  terms  subject  to  such  excep- 
tions as  may  be  made  elsewhere  in  the  constitution,  and  no  change  in 
this  article  is  necessary,  even  though  specific  changes  may  be  made  in 
the  actual  powers  of  the  three  departments. 

A schedule  is,  of  course,  necessarily  adapted  to  each  specific  con- 
stitution, and  changes  in  the  schedule  are  necessary  to  adjust  existing 
conditions  to  a new  constitution  if  one  is  adopted  or  to  constitutional 
amendments  if  such  amendments  make  material  changes  in  existing 
constitutional  provisions.  A number  of  the  sections  of  the  schedule  are 
obsolete.  A number  of  the  sections  can  be  used  in  a new  constitution 
without  material  change.  One  provision  of  the  schedule  (Section  18) 
is  a permanent  provision,  and  should  properly  not  be  in  the  schedule, 
but  should  be  elsewhere  among  the  permanent  provisions  of  the  con- 
stitution. 


- 1210 


APPENDIX— ILLINOIS  CONSTITUTIONAL  PROVISIONS. 

PREAMBLE 


We,  the  People  of  the  State  of  Illinois — grateful  to  Almighty  God 
for  the  civil,  political  and  religious  liberty  which  He  hath  so  long  per- 
mitted us  to  enjoy,  and  looking  to  Him  for  a blessing  upon  our  en- 
deavors to  secure  and  transmit  the  same  unimpaired  to  succeeding  gen- 
erations— in  order  to  form  a more  perfect  government,  establish  jus- 
tice, insure  domestic  tranquillity,  provide  for  the  common  defense,  pro- 
mote the  general  welfare,  and  secure  the  blessing  of  liberty  to  ourselves 
and  our  posterity,  do  ordain  and  establish  this  Constitution  for  the 
State  of  Illinois. 


ARTICLE  I BOUNDARIES 

The  boundaries  and  jurisdictions  of  the  State  shall  be  as  follows, 
to-wit:  Beginning  at  the  mouth  of  the  Wabash  River,  thence  up  the 
same,  and  with  the  line  of  Indiana  to  the  northwest  corner  of  said 
State ; thence  east  with  the  line  of  the  same  state,  to  the  middle  of  Lake 
Michigan ; thence  north  along  the  middle  of  said  lake  to  north  latitude 
forty-two  degrees,  and  thirty  minutes,  thence  west  to  the  middle  of  the 
Mississippi  River,  and  thence  down  along  the  middle  of  that  river  to 
its  confluence  with  the  Ohio  River,  and  thence  up  the  latter  river  along 
its  northwestern  shore  to  the  place  of  beginning:  Provided,  that  this 
State  shall  exercise  such  jurisdiction  upon  the  Ohio  River  as  she  is 
now  entitled  to,  or  such  as  may  hereafter  be  agreed-  upon  by  this  State 
and  the  state  of  Kentucky. 


ARTICLE  II BILL  OF  RIGHTS 

§ 1.  All  men  are  by  nature  free  and  independent,  and  have  cer- 
tain inherent  and  inalienable  rights — among  these  are  life,  liberty  and 
the  pursuit  of  happiness.  To  secure  these  rights  and  the  protection  of 
property,  governments  are  instituted  among  men,  deriving  their  just 
powers  from  the  consent  of  the  governed. 

§ 2.  No  person  shall  be  deprived  of  life,  liberty  or  property  with- 
out due  process  of  law. 

§ 3.  The  free  exercise  and  enjoyment  of  religious  profession  and 
worship,  without  discrimination,  shall  forever  be  guaranteed ; and  no 
person  shall  be  denied  any  civil  or  political  right,  privilege  or  capacity 
on  account  of  his  religious  opinions  ; but  the  liberty  of  conscience  hereby 


1211 


secured  shall  not  be  construed  to  dispense  with  oaths  or  affirmations, 
excuse  acts  of  licentiousness,  or  justify  practices  inconsistent  with  the 
peace  or  safety  of  the  State.  No  person  shall  be  required  to  attend  or 
support  any  ministry  or  place  of  worship  against  his  consent,  nor  shall 
any  preference  be  given  by  law  to  any  religious  denomination  or  mode 
of  worship. 

§ 4.  Every  person  may  freely  speak,  write  and  publish  on  all  sub- 
jects, being  responsible  for  the  abuse  of  that  liberty ; and  in  all  trials  for 
libel,  both  civil  and  criminal,  the  truth  when  published  with  good  mo- 
tives and  for  justifiable  ends,  shall  be  a sufficient  defense. 

§ 5.  The  right  of  trial  by  jury,  as  heretofore  enjoyed,  shall  remain 
inviolate;  but  the  trial  of  civil  cases  before  justices  of  the  peace,  by  a 
jury  of  less  than  twelve  men,  may  be  authorized  by  law. 

§ 6.  The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects  against  unreasonable  searches  and  seizures,  shall  not 
be  violated ; and  no  warrant  shall  issue  without  probable  cause,  sup- 
ported by  affidavit,  particularly  describing  the  place  to  be  searched,  and 
the  person  or  things  to  be  seized. 

§ 7.  All  persons  shall  be  bailable  by  sufficient  sureties,  except  for 
capital  offenses  where  the  proof  is  evident  or  the  presumption  great ; 
and  the  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended, 
unless  when  in  cases  of  rebellion  or  invasion  the  public  safety  may  re- 
quire it. 

§ 8.  No  person  shall  be  held  to  answer  for  a criminal  offense,  un- 
less on  indictment  of  a grand  jury,  except  in  cases  in  which  the  pun- 
ishment is  by  fine,  or  imprisonment  otherwise  than  in  the  penitentiary, 
in  cases  of  impeachment,  and  in  cases  arising  in.  the  army  and  navy,  or 
in  the  militia,  when  in  actual  service  in  time  of  war  or  public  danger: 
Provided,  that  the  grand  jury  may  be  abolished  by  law  in  all  cases. 

§ 9.  In  all  criminal  prosecutions  the  accused  shall  have  the  right  to 
appear  and  defend  in  person  and  by  counsel ; to  demand  the  nature  and 
cause  of  the  accusation,  and  to  have  a copy  thereof,  to  meet  the  wit- 
nesses face  to  face,  and  to  have  process  to  compel  the  attendance  of 
witnesses  in  his  behalf,  and  a speedy  public  trial  by  an  impartial  jury 
of  the  county  or  district  in  which  the  offense  is  alleged  to  have  been 
committed. 

§ 10.  No  person  shall  be  compelled  in  any  criminal  case  to  give 
evidence  against  himself,  or  to  be  twice  put  in  jeopardy  for  the  same 
offense. 

§ 11.  All  penalties  shall  be  proportioned  to  the  nature  of  the  of- 
fense; and  no  conviction  shall  work  corruption  of  blood  or  forfeiture 
of  estate ; nor  shall  any  person  be  transported  out  of  the  State  for  any 
offense  committed  within  the  same. 

§12.  No  person  shall  be  imprisoned  for  debt,  unless  upon  refusal 
to  deliver  up  his  estate  for  the  benefit  of  his  creditors,  in  such  manner 
as  shall  be  prescribed  by  law;  or  in  cases  where  there  is  strong  pre- 
sumption of  fraud. 

§ 13.  Private  property  shall  not  be  taken  or  damaged  for  public 
use  without  just  compensation.  Such  compensation,  when  not  made  by 
the  State,  shall  be  ascertained  by  a jury,  as  shall  be  prescribed  by  law. 


1212 


The  fee  of  land  taken  for  railroad  tracks,  without  consent  of  the  own- 
ers thereof,  shall  remain  in  such  owners,  subject  to  the  use  for  which  it 
is  taken. 

§ 14.  No  ex  post  facto  law,  or  law  impairing  the  obligation  of 
contracts,  or  making  any  irrevocable  grant  of  special  privilege  or  im- 
munities, shall  be  passed. 

§ 15.  The  military  shall  be  in  strict  subordination  to  the  civil 
power. 

§ 16.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house 
without  the  consent  of  the  owner;  nor  in  time  of  war  except  in  the 
manner  prescribed  by  law. 

§ 17.  The  people  have  the  right  to  assemble  in  a peaceable  man- 
ner to  consult  for  the  common  good,  to  make  known  their  opinions  to 
their  representatives,  and  to  apply  for  redress  of  grievances. 

§ 18.  All  elections  shall  be  free  and  equal. 

§ 19.  Every  person  ought  to  find  a certain  remedy  in  the  laws  for 
all  injuries  and  wrongs  which  he  may  receive  in  his  person,  property 
or  reputation;  he  ought  to  obtain  by  law,  right  and  justice  freely,  and 
without  being  obliged  to  purchase  it,  completely  and  without  denial, 
promptly  and  without  delay. 

§ 20.  A frequent  recurrence  to  the  fundamental  principles  of  civil 
government  is  absolutely  necessary  to  preserve  the  blessings  of  liberty. 


ARTICLE  III DISTRIBUTION  OF  POWERS 

The  powers  of  the  government  of  this  State  are  divided  into  three 
distinct  departments — the  Legislative,  Executive  and  Judicial;  and  no 
person,  or  collection  of  persons,  being  one  of  these  departments,  shall 
exercise  any  power  properly  belonging  to  either  of  the  others,  except  as 
hereinafter  expressly  directed  or  permitted. 


ARTICLE  VII SUFFRAGE 

§ 1.  Every  person  having  resided  in  this  State  one  year,  in  the 
county  ninety  days  and  in  the  election  district  thirty  days  next  preced- 
ing any  election  therein ; who  was  an  elector  in  this  State  on  the  first 
day  of  April,  in  the  year  of  our  Lord,  one  thousand  eight  hundred  and 
forty-eight,  or  obtained  a certificate  of  naturalization,  before  any  court 
of  record  in  this  State,  prior  to  the  first  day  of  January,  in  the  year  of 
our  Lord,  one  thousand  eight  hundred  and  seventy,  or  who  shall  be  a 
male  citizen  of  the  United  States,  above  the  age  of  21  years,  shall  be 
entitled  to  vote  at  such  election. 

§ 2.  All  votes  shall  be  by  ballot. 

§ 3.  Electors  shall,  in  all  cases  except  treason,  felony  or  breach  of 
the  peace,  be  privileged  from  arrest  during  their  attendance  at  elec- 
tions and  in  going  to  and  returning  from  the  same.  And  no  elector 
shall  be  required  to  do  military  duty  on  the  days  of  election,  except  in 
time  of  war  or  public  danger. 


1213 


§ 4.  No  elector  shall  be  deemed  to  have  lost  his  residence  in  this 
State  by  reason  of  his  absence  on  business  of  the  United  States  or  of 
this  State,  or  in  the  military  or  naval  service  of  the  United  States. 

§ 5.  No  soldier,  seaman  or  marine  in  the  army  or  navy  of  the 
United  States  shall  be  deemed  a resident  of  this  State  in  consequence 
of  being  stationed  therein. 

§ 6.  No  person  shall  be  elected  or  appointed  to  any  office  in  this 
State,  civil  or  military,  who  is  not  a citizen  of  the  United  States,  and 
who  shall  not  have  resided  in  this  State  one  year  next  preceding  the 
election  or  appointment. 

§ 7.  The  General  Assembly  shall  pass  laws  excluding  from  the 
right  of  suffrage  persons  convicted  of  infamous  crimes. 


ARTICLE  VIII EDUCATION 

§ 1.  The  General  Assembly  shall  provide  a thorough  and  efficient 
system  of  free  schools  whereby  all  children  of  this  State  may  receive 
a good  common  school  education. 

§ 2.  All  lands,  moneys,  or  other  property,  donated,  granted  or  re- 
ceived for  school,  college,  seminary  or  university  purposes,  and  the  pro- 
ceeds thereof  shall  be  faithfully  applied  to  the  objects  for  which  such 
gifts  or  grants  were  made. 

§ 3.  Neither  the  General  Assembly  nor  any  county,  city,  town, 
township,  school  district  or  other  public  corporation  shall  ever  make 
any  appropriation,  or  pay  from  any  public  fund  whatever,  anything  in 
aid  of  any  church  or  sectarian  purpose,  or  to  help  support  or  sustain 
any  school,  academy,  seminary,  college,  university  or  other  literary  or 
scientific  institution,  controlled  by  any  church  or  sectarian  denomina- 
tion whatever ; nor  shall  any  grant  or  donation  of  land,  money  or  other 
personal  property  ever  be  made  by  the  State  or  any  such  public  cor- 
poration to  any  church  or  for  any  sectarian  purpose. 

§ 4.  No  teacher,  State,  county,  township  or  district  school  officer 
shall  be  interested  in  the  sale,  proceeds  or  profits  of  any  book,  apparatus 
or  furniture,  used  or  to  be  used  in  any  school  in  this  State,  with  which 
such  officer  or  teacher  may  be  connected,  under  such  penalties  as  may 
be  provided  by  the  General  Assembly. 

§ 5.  There  may  be  a county  superintendent  of  schools  in  each 
county,  whose  qualifications,  powers,  duties,  compensation  and  time  and 
manner  of  election  and  term  of  office  shall  be  prescribed  by  law. 


ARTICLE  XII MILITIA 

§ 1.  The  militia  of  the  State  of  Illinois  shall  consist  of  all  able- 
bodied  male  persons,  resident  in  the  State,  between  the  ages  of  18  and 
45,  except  such  persons  as  now  are  or  hereafter  may  be  exempted  by 
the  laws  of  the  United  States  or  of  this  State. 

§ 2.  The  General  Assembly,  in  providing  for  the  organization, 
equipment  and  discipline  of  the  militia,  shall  conform  as  nearly  as 


1214 


practicable  to  the  regulations  for  the  government  of  the. armies  of  the 
United  States. 

§ 3.  All  militia  officers  shall  be  commissioned  by  the  Governor, 
and  may  hold  their  commissions  for  such  time  as  the  General  Assem- 
bly may  provide. 

§ 4.  The  militia  shall,  in  all  cases  except  treason,  felony  or  breach 
of  the  peace,  be  privileged  from  arrest  during  their  attendance  at  mus- 
ters and  elections,  and  in  going  to  and  returning  from  the  same. 

§ 5.  The  military  records,  banners  and  relics  of  the  State  shall  be 
preserved  as  an  enduring  memorial  of  the  patriotism  and  valor  of  Illi- 
nois, and  it  shall  be  the  duty  of  the  General  Assembly  to  provide  by 
law  for  the  safe-keeping  of  the  same. 

§ 6.  No  persons  having  conscientious  scruples  against  bearing  arms 
shall  be  compelled  to  do  militia  duty  in  the  time  of  peace : Provided, 
such  person  shall  pay  an  equivalent  for  such  exemption. 


1215 


INDEX. 


(References  are  to  consecutive  page  numbers  of  the  bulletins,  with 
the  bulletin  number  noted  immediately  following  each  reference.) 


ABSENT  VOTING 
38,  Bui.  1 
1208,  Bui.  15 

ABSENTEE  LANDLORDISM 
1087,  Bui.  13 

ACCOUNTANCY  EXAMINERS 
BOARD 
680,  Bui.  9 

ADJUTANT  GENERAL 
668,  Bui.  9 

ADVERTISING,  PUBLIC 
485,  508,  Bui.  7 
1136,  Bui.  14 

ADVISORY  OPINIONS 
861,  Bui.  10 

AGRICULTURE 
department  of 
653,  Bui.  9 

farm  tenancy  and  farm  loans 
1083-1122,  Bui.  13 
1129,  1142,  1151,  1179,  Bui.  14 

AMENDMENT  BY  REFERENCE 
557,  600,  Bui.  8 

AMENDMENTS 

See  Constitutional  amendments. 

AMERICANIZATION 
1204,  Bui.  15 

APPEALS 

in  judicial  system 
760,  806,  896,  et  seq.  Bui.  10 

APPELLATE  COURTS 
736,  744,  786,  806,  Bui.  10 


APPOINTMENTS 
legislative 
573,  574,  Bui.  8 
power  to  make 
682,  705-708,  Bui.  9 

APPORTIONMENT 

legislative 

545-547,  Bui.  8 
supreme  court 

757,  821,  885,  Bui.  10 

APPROPRIATIONS 
increase 
628,  Bui.  9 
methods 

268-287,  Bui.  4 

ATTORNEY  GENERAL 

analysis  of  powers 
693,  Bui.  9 

constitutional  provisions 
646,  Bui.  9 
short  ballot 
365,  Bui.  5 

AUDITOR  OF  PUBLIC  ACCOUNTS 

analysis  of  powers 
689,  Bui.  9 

constitutional  and  statutory  func- 
tions 

640,  Bui.  9 

finance  administration 
696,  Bui.  9 
short  ballot 
364,  Bui.  5 

BALLOT 

growing  length 
339-347,  Bui.  5 
secret  voting 
1207,  Bui.  15 


1216 


BANKS 

constitutional  provisions 
1179,  Bui.  14 
farm  loans 

1089-1122,  Bui.  13 

BIBLE  READING 

1199,  Bui.  15 

BILL  OF  RIGHTS 
1196,  1210,  Bui.  15 

BILLBOARDS 
485,  Bui.  7 
1136,  Bui.  14 

BONUS,  SOLDIERS 
1147-1154,  Bui.  14 

BOUNDARIES 
1209,  1210,  Bui.  15 

BUDGET 

268-287,  Bui.  4 

572,  Bui.  8 

636,  653,  681,  Bui.  9 

CANALS 

1180,  Bui.  14 

CANVASS  OF  VOTES 
general  assembly 
573,  Bui.  8 

state  canvassing  board 
674,  Bui.  9 

CAPITAL  PUNISHMENT 

1200,  Bui.  15 

CENTENNIAL  BUILDING  COMMIS- 
SION 
676,  Bui.  9 

CHICAGO 

courts 

773-784,  793,  Bui.  10 
government 
905-954,  Bui.  11 
maps 

insert  before  911,  Bui.  11 
representation 
548-554,  Bui.  8 

CHILDREN 

hours  and  conditions  of  labor 
1131,  Bui.  14 

CIRCUIT  COURTS 

746-749,  768-771,  781-784,  Bui.  10 


CITIES  AND  VILLAGES 
consolidation  with  counties 
416-418,  Bui.  6 
940-979,  Bui.  11 
government  in  Illinois 
382-398,  Bui.  6 
1032,  1033,  Bui.  12 
government  of  Chicago 
905-954,  Bui.  11 

CITY  COURTS 

752,  756,  767-768,  776,  810,  893,  Bui.  10 

CITY  PLANNING 
478-4&7,  Bui.  7 

CIVIL  ADMINISTRATIVE  CODE 
budget  provisions 
268-287,  Bui.  4 
departments  not  under 
667,  Bui.  9 
departments  under 
650,  Bui.  9 
enactment 
626,  Bui.  9 

CIVIL  SERVICE 
commission 
669,  Bui.  9 

constitutional  provisions 
705,  Bui.  9 
in  Illinois 
626,  Bui.  9 

preference  to  soldiers 
1148,  1153,  Bui.  14 

CLASSIFICATION  FOR  TAXATION 
250-251,  Bui.  4 

CLAIMS  AGAINST  THE  STATE 
864-874,  Bui.  10 

CLAYTON  ACT 
1164-1168,  Bui.  14 

UNIFORM  LAWS 
668,  Bui.  9 

COMMITTEES 

constitutional  convention 
24-30,  Bui.  1 
legislative 

562-565,  Bui.  8 

COMPENSATION  OF  OFFICERS 
18,  Bui.  1 

COMPULSORY  VOTING 
39,  Bui.  1 


CONSOLIDATION 
of  local  areas 
416,  Bui.  6 
1056,  Bui.  12 

of  local  areas  in  Cook  county 
940-979,  Bui.  11 
state  government 
625,  Bui.  9 

CONSTITUTION 
development 
31-52,  Bui.  1 
draftsmanship 
15-22,  Bui.  1 

relationship  of  initiative  and  referen- 
dum to 
115,  Bui.  2 

relationship  to  legislation 
195-197,  Bui.  3 
599,  Bui.  8 
scope  of 
599,  Bui.  8 

CONSTITUTIONAL  AMENDMENT 
92-93,  104,  115,  Bui.  2 
173-189,  Bui.  3 
599,  Bui.  8 

CONSTITUTIONAL  CONVENTION 
act  calling 
53-56,  Bui.  1 

constitutional  revision  through 
190-192,  Bui.  3 
procedure 
23-30,  Bui.  1 

COOK  COUNTY 
courts 

773-786,  Bui.  10 
government 
911-936,  Bui.  11 
limitation  of  representation 
548-554,  Bui.  8 
map  “ 

insert  before  911,  Bui.  11 

CONTEMPTS 
in  labor  cases 
1133,  Bui.  14 
punishment  of 
1172,  Bui.  14 

CONTRACTS,  INTEREST  IN 
18,  Bui.  1 
1204,  Bui.  15 

CONVICT  LABOR 
amendment  of  1886 
1131,  1132,  Bui.  14 

CO-OPERATION 
between  labor  and  capital 
1136,  Bui.  14 
co-operative  societies 
1176,  Bui.  14 


CORONERS 
812,  Bui.  10 
1023,  1057,  Bui.  12 

CORPORATIONS 
constitutional  provisions 
1176,  Bui.  14 

franchises,  condemnation  of 
476,  Bui.  7 
state  supervision  of 
701,  Bui.  9 

CORRUPT  PRACTICES 
1208,  Bui.  15 

COUNTIES 

area  and  population  statistics 
892,  Bui.  10 
1062,  Bui.  12 

consolidation  of  functions  with  those 
of  cities 
416,  Bui.  6 
940-979,  Bui.  11 
1056,  Bui.  12 
courts 

749,  764-767,  810,  Bui.  10 
government 

1019-1027,  Bui.  12 
government  of  Cook  county 
911-936,  Bui.  11 
home  rule 

1047,  1048,  1058,  1066,  Bui.  12 
short  ballot 
367,  Bui.  5 

COUNTY  COURTS 
Cook  county 
779,  Bui.  10 

organization  and  jurisdiction 
749-751,  Bui.  10 
salaries  of  judges 
892,  Bui.  10 
suggested  changes 
810,  Bui.  10 
work  of 

764,  767,  Bui.  10 

COUNTY  SUPERINTENDENTS  OP 
SCHOOLS 
1203,  Bui.  15 

COURT  COMMISSIONERS 
810,  Bui.  10 

COURT  OF  CLAIMS 
671,  697,  Bui.  9 
864-874,  Bui.  10 

COURTS 

power  to  declare  laws  unconstitu- 
tional 

847-863,  Bui.  10 
576,  Bui.  8 


1218 


COURTS— Concluded 
rules  of  court 
803-806,  Bui.  10 
statistics  of,  in  Illinois 
885  et  seq.',  Bui.  10 
unified  court 
793-803,  Bui.  10 

See,  also,  names  of  separate  courts 

CRIMINAL  COURT  OF  COOK 
COUNTY 
748,  784,  Bui.  10 

CUMULATIVE  VOTING 
for  representatives 
538-544,  Bui.  8 
in  corporations 
1176,  Bui.  14 

DEBT,  STATE  AND  MUNICIPAL 
288-303,  Bui.  4 
421,  Bui.  6 
1008,  Bui.  12 
1178,  1182,  Bui.  14 

DEEP  WATERWAY 
1181,  Bui.  14 

DEPARTMENT  OF  AGRICULTURE 
653,  Bui.  9 

DEPARTMENT  OF  FINANCE 
652,  Bui.  9 

DEPARTMENT  OF  LABOR 

655,  Bui.  9 

DEPARTMENT  OF  MINES  AND 
MINERALS 

656,  Bui.  9 

DEPARTMENT  OF  PUBLIC 
HEALTH 
660,  Bui.  9 

DEPARTMENT  OF  PUBLIC  WORKS 
AND  BUILDINGS 

657,  Bui.  9 

DEPARTMENT  OF  PUBLIC  WEL- 
FARE 
659,  Bui.  9 

DEPARTMENT  OF  REGISTRATION 
AND  EDUCATION 
664,  Bui.  9 

DEPARTMENT  OF  TRADE  AND 
COMMERCE 
662,  Bui.  9 


DISTRIBUTION  OF  POWERS 
constitutional  provisions 
1209,  1212,  Bui.  15 
development 
31-33,  Bui.  1 

DRAFTSMANSHIP 
of  tonstitution 
15-22,  Bui.  1 
of  laws 

557,  565,  Bui.  8 

DRAINAGE 

drainage  districts 
1030-1032,  Bui.  12 
drainage  districts  in  Cook  County 
934,  Bui.  11 
eminent  domain 
475,  Bui.  7 

DUE  PROCESS 
578-580,  Bui.  8 
848-862,  Bui.  10 
1130-1137,  Bui.  14 

EDUCATION 
See  Schools 

ELECTIONS 
37-40,  Bui.  1 
337-368,  Bui.  5 
538-544,  Bui.  8 
674,  702,  Bui.  9 
814-821,  Bui.  10 
1207,  Bui.  15 

ENGLISH 

as  constitutional  language 
1204,  Bui.  15 

EMINENT  DOMAIN 
455-513,  Bui.  7 

EXCESS  CONDEMNATION 
488-498,  Bui.  7 

EXECUTIVE  DEPARTMENT 
development  in  other  states 
40-42,  Bui.  1 
in  general 

621-715,  Bui.  9 
relationship  to  legislature 

570-573,  5,88-591,  594-595,  Bui.  8 
short  ballot 
364-366,  Bui.  5 

FARM  LOANS 
1083-1122,  Bui.  13 
1129,  1142,  1151,  1179,  Bui.  14 

FARM  TENANCY 
1085-1088,  Bui.  13 


1219 


FARMERS’  INSTITUTE 
678,  Bui.  9 

FEDERAL  FARM  LOAN  SYSTEM 
. 1089-1109,  Bui.  13 

FEES  AND  SALARIES 
alteration 
18,  Bui.  1 

FINANCE 

department  of 
652,  Bui.  9 

local  administration 
1037-1040,  1054,  Bui.  12 
state  administration 
696,  Bui.  9 

FRANCHISES,  CORPORATE 
condemnation  of 
476,  Bui.  7 

GENERAL  ASSEMBLY 
521-611,  Bui.  8 

GOVERNOR 

analysis  of  powers 
681-687,  Bui.  9 
appointments  and  removal? 

705-708,  Bui.  9 
powers  and  duties 
632-637,  Bui.  9 
veto  power 
570-573,  Bui.  8 

GRAND  JURY 
828-836,  Bui.  10 

HEALTH 

department  of  public 
660,  Bui.  9 

HEALTH  INSURANCE 
1136,  1144,  Bui.  14 

HIGHWAYS 
See  Roads 

HISTORICAL  LIBRARY,  STATE 
672,  Bui.  9 

HOME  RULE 
county, 

1047,  1058,  1066,  1075,  Bui.  12 
municipal 

377-448,  Bui.  6 

HOMES 

ownership  of,  government  aid 
1138-1143,  Bui.  14 

HOURS  OF  LABOR 
1131,  1134,  Bui.  14 


HOUSING 

validity  of  projects  for 
1136,  1138-1143,  Bui.  14 

ILLINOIS  AND  MICHIGAN  CANAL 
1180,  Bui.  14 


ILLINOIS  CENTRAL  RAILROAD 
1183-1187,  Bui.  14 


IMPEACHMENT 
574-576,  Bui.  8 
705-708,  Bui.  9 
822-824,  Bui.  10 


INDICTMENT 
828-836,  Bui.  10 

INFORMATION 
828-836,  Bui.  10 

INITIATIVE 

of  constitutional  amendments 
187,  195,  Bui.  3 


INITIATIVE  AND  REFERENDUM 
65-165,  Bui.  2 
599,  Bui.  8 

INJUNCTIONS 
in  labor  cases 
1133,  1155-1175,  Bui.  14 


INSURANCE 

health 

1136,  1144,  Bui.  14 
in  general 

1179,  Bui.  14 
old  age 

1136,  Bui.  14 
social 

1144,  1146,  Bui.  14 
unemployment 

1145,  Bui.  14 


INTERNAL  IMPROVEMENTS 
1182,  Bui.  14 


JUDGES 

election  of,  and  short  ballot 
367,  Bui.  5 
election  and  tenure 
814-827,  Bui.  10 
removal 

574-576,  Bui.  8 
705-708,  Bui.  9 
822-824,  Bui.  10 


1220 


JUDICIAL  DEPARTMENT 
development  in  other  states 
45-47,  Bui.  1 
in  general 

726-896,  Bui.  10 
maps 

insert  after  754,  Bui.  10 
statistics 

885,  et  seq.,  Bui.  10 

JURISDICTION,  UNIFORMITY  OF 
811,  Bui.  10 

JURY  TRIAL 

in  eminent  domain  cases 
472-474,  Bui.  7 
in  general 

837-846,  Bui.  10 

JUSTICES  OF  THE  PEACE 

754,  762-764,  775,  812,  824,  Bui.  10 
1028,  Bui.  12 

KINDERGARTENS 
1204,  Bui.  15 

LABOR 

child 

1131,  Bui.  14 
department  of 
655,  Bui.  9 

employment  by  misrepresentation 
1135,  Bui.  14 

giving  preferred  status  to 
1169,  Bui.  14 
hours  of  labor 

1131,  1134,  Bui.  14 
injunctions 

1133,  1155-1175,  Bui.  14 
minimum  wage 

1132,  Bui.  14 
payment  of  wages 

1133,  Bui.  14 

safety  appliance  legislation 
1132,  Bui.  14 
union 

1135,  Bui.  14 
women 

1131,  1136,  Bui.  14 
workmen’s  compensation 

1132,  Bui.  14 

LANGUAGE 

English 

1204,  Bui.  15 

LAWS 

amendment  by  reference 
557,  600,  Bui.  8 
unconstitutionality  of 
576,  Bui.  8 
847-863,  Bui.  10 


LAW — Concluded 
draftsmanship 
557,  565,  Bui.  8 
time  effective 
558-560,  Bui.  8 

LEGISLATIVE  DEPARTMENT 
appropriation  methods 
268-287,  Bui.  4 

development  in  other  states 
43-45,  Bui.  1 
in  general 

521-611,  Bui.  8 
relation  to  executive 

570-573,  588-591,  594-595,  Bui.  8 

LEGISLATIVE  REFERENCE  BUR 
EAU 

673,  699,  Bui.  9 
LIBRARY 

boards  in  Cook  county 
933,  Bui.  11 
extension  commission 
678,  Bui.  9 

relationship  of  state  libraries 
699,  Bui.  9 
state 

673,  Bui.  9 
state  historical 
672,  Bui.  9 

LIEUTENANT  GOVERNOR 
364,  Bui.  5 
637,  687,  Bui.  9 

LIBEL 

1200,  Bui.  15 

LINCOLN  PARK  COMMISSIONERS 
672,  685,  Bui.  9 

LIQUOR 

constitutional  provisions  regarding 
50,  Bui.  1 


LOCAL  GOVERNMENT 
Chicago  and  Cook  County 
905-999,  Bui.  11 
consolidation  of  areas 
416-418,  Bui.  6 
937-954,  Bui.  11 
in  general 

1007-1076,  Bui.  12 
short  ballot 
367,  Bui.  5 

state  supervision  over 
1054,  Bui.  12 


1221 


MAPS 

Chicago  and  Cook  County 
insert  before  911,  Bui.  11 
judicial 

insert  after  754,  Bui.  10 
Supreme  Court  election  districts 
insert  before  821,  Bui.  10 

MASTERS  IN  CHANCERY 
in  judicial  system 
810,  Bui.  10 

METROPOLITAN  COURT 
for  Chicago 
793,  Bui.  10 
948,  Bui.  11 

MILITIA 
adjutant  general 
668,  Bui.  9 
in  general 

1206,  1213,  Bui.  15 

MINERS 

. requirement  of  legislation  for  pro- 
tection 
1130,  Bui.  14 

MINES  AND  MINERALS 
department  of 
656,  Bui.  9 

MINIMUM  WAGE 
1132,  Bui.  14 

MINORITY  REPRESENTATION 
538-544.  Bui.  8 
1176,  Bui.  14 

MUNICIPAL  COURT  OF  CHICAGO 
725,  737,  753,  776-779,  Bui.  10 
919,  Bui.  11 

MUNICIPAL  DEBT 
limitations 

288-303,  Bui.  4 
1008,  Bui.  12 
public  utilities  and, 

421-423,  Bui.  6 

MUNICIPAL  GOVERNMENT 
377-448,  Bui.  6 
905-999,  Bui.  11 
1007-1076,  Bui.  12 

MUNICIPAL  HOME  RULE 
377-448,  Bui.  6 

NORMAL  SCHOOLS 
1203,  Bui.  15 

OFFICE 

qualifications  for 
1208,  Bui.  15 


OFFICERS 

compensation,  alteration 
18,  Bui.  1 

OLD  AGE  INSURANCE 
1136,  1145,  Bui.  14 

PARDONING  POWER 
686,  Bui.  9 

PARK  DISTRICTS 
in  Chicago  and  Cook  County 
930-932,  Bui.  11 
in  general 

1033-1035,  Bui.  12 

PENITENTIARY  COMMISSION 
668,  Bui.  9 

PENSIONS,  OLD  AGE 
1145,  Bui.  14 

POLICE  MAGISTRATES 
See  Justices  of  the  Peace 

POLICE  POWER 
city  planning  and 
485-487,  Bui.  7 

PREAMBLE 

1209,  1210,  Bui.  15 

PREFERENCES,  SOLDIERS 
1148,  1153,  Bui.  14 

PRIMARY  CANVASSING  BOARD 
674,  Bui.  9 

PRIVATE  ROADS 
474,  Bui.  7 

PROBATE  COURTS 

737,  751,  764-767,  780,  809,  892,  Bui.  10 

PROCEDURE 
constitutional  convention 
23-30,  Bui.  1 
legislative 
555-569,  Bui.  8 

PUBLIC  DEFENDER 
811,  Bui.  10 

PROPORTIONAL  REPRESENTATION 
542-544,  Bui.  8 

PUBLIC  HEALTH  DISTRICTS 
1035,  Bui.  12 

PUBLIC  IMPROVEMENTS 
protection  through  power  of  eminent 
domain 

491-493,  Bui.  7 


1222 


PUBLIC  POLICY  LAW 
71,  Bui.  2 

PUBLIC  UTILITIES 
301-303,  Bui.  4 
421-423,  Bui.  6 
396-397,  421-423,  Bui.  6 
1178,  Bui.  14 

PUBLIC  WORKS 
hours  of  labor  on 
1134,  Bui.  14 

PUBLIC  WORKS  AND  BUILDINGS 
department  of 

657,  Bui.  9 

RAILROADS 

1177,  1180,  Bui.  14 

READING 
of  bills 
555,  Bui.  8 

RECALL  OF  OFFICERS 
120-122,  Bui.  2 

RECALL  OF  JUDICIAL  DECISIONS 
119,  Bui.  2 

REFERENDUM 

See  Initiative  and  Referendum 

RELIGIOUS  LIBERTY 
1196-1199,  Bui.  15 

REMOVAL  OF  OFFICERS 
general  assembly,  power  of 
574-576,  Bui.  8 
governor,  power  of 
683,  Bui.  9 
in  general 

705-708,  Bui.  9 
of  judges 

822-824,  Bui.  10 

REPRESENTATION 
limitation  of 
548-554,  Bui.  8 

ROADS 

administration  of 

658,  Bui.  9 

1024,  1027,  Bui.  12 
private 
474,  Bui.  7 
state  bond  issue 
1181,  Bui.  14 

RULES  OF  COURT 
803-806,  Bui.  10 


RURAL  CREDITS 
1083-1122,  Bui.  13 

SAFETY  APPLIANCE 
legislation 
1132,  Bui.  14 

SALARIES 
alteration 
18,  Bui.  1 

SANITARY  DISTRICT  OF  CHICAGO 
923-925,  Bui.  11 

SCHEDULE 
1209,  Bui.  15 

SCHOOLS 

constitutional  provisions 
1203,  1213,  Bui.  15 
county  superintendent  of 

1203,  Bui.  15 
in  Cook  County 

932,  Bui.  11 
local  administration 
1029,  1038,  Bui.  12 
sectarian  institutions 
1196-1199,  Bui.  15 
state  agencies  of 
698,  Bui.  9 

state  superintendent  of  public  in- 
struction 
645,  691,  Bui.  9 

1204,  Bui.  15 
state  supervision  of 

1054,  Bui.  12 

teachers’  examining  board 
679,  Bui.  9 

^teachers’  pension  and  retirement 
fund 

675,  Bui.  9 

vocational  education 
672,  Bui.  9 
1204,  Bui.  15 

SECRETARY  OF  STATE 
638-640,  688,  697,  699,  701,  Bui.  9 

SECTARIAN  INSTITUTIONS 
1196-1199,  Bui.  15 

SELF-INCRIMINATION 
1199,  Bui.  15 

SENATE 

confirmation  of  appointments 
574,  Bui.  8 

SHORT  BALLOT 
337-368,  Bui.  5 
704,  Bui.  9 


1223 


SICKNESS  INSURANCE 
1136,  1144,  Bui.  14 

SINGLE  TAX 
263,  Bui.  4 

SOCIAL  INSURANCE 
1136,  1144,  Bui.  14 

SOLDIERS 

bonuses  and  preferences 
1147-1154,  Bui.  14 
land  settlements 
1116,  Bui.  13 
1149-1151,  Bui.  14 

SPECIAL  ASSESSMENTS 
eminent  domain  and 
469,  499,  Bui.  7 
in  general 
230,  240,  Bui.  4 

SPECIAL  LEGISLATION 
44,  Bui.  1 

382,  384,  400=403,  Bui.  6 
583,  Bui.  8 
850,  Bui.  10 

SPECIAL  SESSIONS 
535,  570,  Bui.  8 

STATE 
suits  against 
864-874,  Bui.  10 

STATE  CANVASSING  BOARD 
674,  Bui.  9 

STATE  CONSTITUTIONS 
development 
31-52,  Bui.  1 
scope 

11-14,  Bui.  1 

STATE  DEBTS 
288-303,  Bui.  4 
1180,  Bui.  14 

STATE’S  ATTORNEYS 
648,  684,  694,  707,  Bui.  9 
811,  892,  Bui.  10 
1022,  Bui.  12 

STREET  RAILROADS 
301-303,  Bui.  4 
396-397,  421-423,  Bui.  6 
1178,  Bui.  14 

SUFFRAGE 
exclusions 
1208,  Bui.  15 
woman, 

1207,  Bui.  15 


SUITS  AGAINST  THE  STATE 
864-874,  Bui.  10 

SUPERINTENDENT  OF  PUBLIC  IN- 
STRUCTION 
645,  691,  Bui.  9 
1204,  Bui.  15 

SUPERIOR  COURT  OF  COOK 
COUNTY 

748,  781-784,  Bui.  10 

SUPREME  COURT 
analysis  of  work 
786-789,  Bui.  10 
appellate  system 
806-808,  826,  Bui.  10 
election  of  judges 
820,  821,  885,  Bui.  10 
map  of  election  districts 
insert  before  821,  Bui.  10 
organization  and  jurisdiction 
740-744,  Bui.  10 
statistics 

896  et  seq.,  Bui.  10 

TAX  LEVY  BOARD 

674,  Bui.  9 

TAXATION 

exemption  of  soldiers 
1149,  1153,  Bui.  14 
in  general 

215-267,  Bui.  4 
local  administration 
1027,  Bui.  12 
since  1900 
47,  Bui.  1 

to  encourage  small  land  holdings 
1083,  1086,  1120,  Bui.  13 

TEACHERS’  EXAMINING  BOARD 
679,  Bui.  9 

TEACHERS’  PENSION  AND  RE- 
TIREMENT FUND 

675,  Bui.  9 

TESTAMENTARY  TRUSTS 
780,  809,  Bui.  10 

TITLES 
of  bills, 

557,  Bui.  8 

TOWNSHIP  SYSTEM 
in  Cook  County 
925-928,  Bui.  11 
in  Illinois 

1011,  1024-1027,  1038,  1057,  Bui.  12 
in  other  states 
1048,  1051,  Bui.  12 


1224 


TREASURER 

state 

642,  690,  Bui.  9 

UNCONSTITUTIONALITY 
declaration  of 
576,  Bui.  8 
847-863,  Bui.  10 

UNIFICATION 
of  local  governments 
416,  Bui.  6 
940-979,  Bui.  11 
1056,  Bui.  12 

UNIFIED  COURT 
793-803,  Bui.  10 


UNION  LABOR 
preference  of 
1135,  Bui.  14 


UNITED  STATES 
farm  loan  system 
1089-1109,  Bui.  13 

UNIVERSITY  OF  ILLINOIS 
676,  698,  Bui.  9 
1203,  Bui.  15 

VETO  POWER 
development 
40-41,  Bui.  1 
in  Illinois 

570-573,  Bui.  8 
initiative  and  referendum, 
100,  Bui.  2 


VOCATIONAL  EDUCATION 
672,  Bui.  9 
1204,  Bui.  15 


JiN'yRvfTr  p . 


J UN  8 192'.' 


VOTING 

absent 

38,  Bui.  1 
1208,  Bui.  15 

compulsory 

39,  Bui.  1 
secret 

1207,  Bui.  15 

VOTING  MACHINES 
38,  Bui.  1 
676,  Bui.  9 
1207,  Bui.  15 

WAGES 

payment 

1133,  Bui.  14 

WAREHOUSES 
1177,  Bui.  14 

WATERWAY 
1181,  Bui.  14 

WEST  CHICAGO  PARK  COMMIS- 
SIONERS 
672,  685,  Bui.  9 

WILLS 

construction 
809,  Bui.  10 

WOMEN 
hours  of  labor 
1131,  1136,  Bui.  14 

WOMAN  SUFFRAGE 
38,  Bui.  1 
1207,  Bui.  15 

WORKMEN’S  COMPENSATION 
- 1132,  Bui.  14 

ZONING 
486,  Bui.  7 


